JADRANKA JELINČIĆ AND DEJAN ILIĆ (eds)

FOR A PUBLIC DEBATE ON CHANGING THE CONSTITUTION!

PUBLISHED BY:
JADRANKA JELINČIĆ AND DEJAN ILIĆ (eds)

FOR A PUBLIC DEBATE

ON CHANGING THE
CONSTITUTION!

Translated by Vanja Savić

Belgrade, 2013
CONTENTS
7 INTRODUCTORY REMARKS
13 Jadranka Jelinčić, THE CONSTITUTIONALIZING OF SERBIA
17 Vladimir Ilić, A NEW CONSTITUTION FOR SERBIA
21 Aleksandar Molnar, SOLVING THE PROBLEM OF DEMOCRATIC
LEGITIMACY BY CHANGING THE CONSTITUTION OF SERBIA
27 Marijana Pajvančić, THE CONSTITUTIONAL ISSUE
31 Oliver Nikolić, THE CONSTITUTION OF SERBIA AND THE PROCESS
OF EUROPEAN INTEGRATION
35 Ljubomir Madžar, THE LIMITED RANGE OF CONSTITUTIONAL
ADJUSTMENTS
47 Dejan Ilić, DOES THE CONSTITUTION NEED TO BE CHANGED?

55 WHY MUST THE CONSTITUTION OF SERBIA BE CHANGED?

57 METHODOLOGY
61 MAIN FINDINGS
61 A) ATTITUDE TOWARDS THE CONSTITUTION AS A WHOLE:
GENERAL ASSESSMENT, LEGACIES AND SOCIAL VALUES
69 B) ATTITUDES TOWARDS THE PROCEDURE OF ADOPTION
OF THE 2006 CONSTITUTION
71 C) ATTITUDE TOWARDS CONSTITUTIONAL REFORM
81 D) ATTITUDE TOWARDS SPECIFIC CONSTITUTIONAL PROVISIONS
81 D1. THE PREAMBLE
86 D2. THE STATEHOOD
95 D3. THE POLITICAL SYSTEM
105 D4. THE TERRITORIAL ORGANIZATION
109 D5. HUMAN RIGHTS
114 D6. THE ECONOMIC SYSTEM
INTRODUCTORY
REMARKS
This book consists of two parts. The first part features seven short expert
commentaries and the second part presents the findings of a survey-based
research of attitudes of citizens towards the existing Constitution of Serbia.
Chronologically, the research had preceded the writing of commentaries. The
research framework has also in a way determined the structure of the com-
mentaries. We have asked the commentators to critically assess one segment
of our research, the segment which falls into the purview of his or her field of
scholarly interest. However, we have attempted to accommodate our readers
by presenting the expert commentaries first and the findings of the research
second. By providing an appropriate context, these commentaries are sup-
posed to help readers get through and understand the research findings. But
this is not the sole function of the expert commentaries. It is our wish to make
them only the first in a series of reactions to the research of citizens’ attitudes
towards the Constitution of Serbia. In other words, they are supposed to serve
both as an incentive for debate on, in our view, one of the most vital issues for
stabilization of the situation in Serbia – changing the existing Constitution.

THE AIM OF THE RESEARCH

The bulk of practice analyses, theoretical articles and increasingly poor effects
of reformed public policies felt in everyday life from 2006 to date suggest
that the current Constitution is one of the major obstacles to coherency of
reforms, establishment of a fully functional democratic state and full exercise
of guaranteed human rights and freedoms.

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 Despite numerous findings, benevolent criticisms and explicit demands
to change the Constitution, the political elite and the decision makers mostly
remain silent on this issue, barring instances of political emergency when they
venture an occasional allusion about the need to change the fundamental law
of the country.
Given this state of affairs, the present research was conducted for the fol-
lowing three reasons:
– to contribute to legitimization of the debate over the need to change the
Constitution, as an important developmental and democratic issue;
– to establish the citizens’ attitude towards the Constitution, i.e. gauge
the extent of people’s awareness of the fact that constitutional reform is a
precondition to address structural policy problems in terms of development
and implementation of economic and political reforms and their willingness
to participate in this process;
– to raise the question why policy makers steer away from putting the issue
of constitutional reform onto the political agenda.

THE STATE OF AFFAIRS

1. It seems that there is a general consensus that social and political circum-
stances in Serbia are unstable. Even though various solutions for ending this
situation are proposed, few people talk about the need to change the Consti-
tution as a necessary precondition for building a functional state. On the basis
of the research findings and the chosen theoretical context for their interpre-
tation, we call for opening a debate on the need to change the Constitution
due to the following reasons:
– Significant increase of investments and accelerated development of
small and medium-sized enterprises can hardly be expected without prior
abolishing of numerous monopolies, thus making the entire business sector
truly equal, and their rights and interests efficiently protected. A precondition
for this is providing firmer guarantees for institutional independence of the
Commission for the Protection of the Competition and the judiciary. This is
unthinkable and impracticable without changing the Constitution.
– Regions can neither develop nor unite before first being established.
The latter is unthinkable and impracticable without changing the Constitu-
tion.
– An effective fight against corruption and control over public authori-
ties is hardly conceivable without providing firmer guarantees to institutional
independence of anti-corruption bodies and without providing additional
guarantees to independence of the judiciary, the Commission for Protection
of Bidders in Public Procurement Procedures, the Commissioner for Informa-
tion of Public Importance and Personal Data Protection and without prior
de-politicization of the prosecution. All this is unthinkable and impracticable
without changing the Constitution.

008
 – Equal access to guaranteed human rights and their effective protection
makes an attractive slogan, but it would be a much more serious commit-
ment and more plausible perspective if it were accompanied by a request to
strengthen the independence of the judiciary as the third branch of govern-
ment and ultimate protector of citizens’ rights, with the Commissioner for the
Protection of Equality becoming a constitutional category which would not
depend for its existence on political will of each (newly) elected government
and the prevailing constellation of parliamentary majority.

Both the political elite and citizens are aware of this.

In fact, only 10% of the population and 5% of political elite believe that the
Constitution should not be changed. The need for an urgent constitutional
reform is more strikingly illustrated by the fact that 42% of the population
and 58% of the political elite believe that changing the Constitution should
be a topic of election campaigns.
So why is there no public debate on changing the Constitution?

2. Constitution is a social contract, an expression of the political consensus

about long-term developmental goals and values on which to base develop-
ment and social relationships; it is also the basic tool for establishing de-
velopmental goals and achieving the agreed values. The effectiveness and
longevity of a Constitution in society derive from the manner in which it
has been enacted. The more the citizens are informed and the greater their
participation in the process of creation of this social contract, the greater is
the prospect to gradually transform the mere text of the Constitution into
a “living Constitution”. In other words, this is the way to ensure the effec-
tiveness of all policies and laws, which are not anything else but an instru-
ment to implement this contract enshrined in the text of the Constitution.
The Constitution of Serbia was adopted in 2006. Few people, including po-
litical parties assembled in the Parliament at the time, remember why the
Constitution was passed in the first place and why it was done with such a
haste (written and adopted in less than three months). Contents of the Con-
stitution had been agreed in a narrow circle of heads of political parties and
adopted without any prior consultation of the citizens. It was adopted at an
extraordinary and odd two-day referendum, making many wonder even today
whether it actually won the proper majority.
The memory of this is still alive. Only 23% of citizens and 25% of politi-
cians believe that the procedure of adoption of the 2006 Constitution was
not deficient. To this day it has affected the development, the effectiveness
and the legitimacy of established institutions and policies, reflected as a
chronic lack of public trust in the state and its bodies.
Establishment of a fundamental social consensus is clearly an urgent de-
velopmental prerequisite.

009
 So why is there no public debate on changing the Constitution?

3. There is a high degree of agreement among politicians and citizens as to

what should be amended in the contents of the Constitution, or what requires
additional attention. To illustrate this point:
–The separation of powers and the system of checks and balances and the
position of independent bodies: 17% of citizens and 21% of politicians believe
that the principle of the separation of powers into legislative, executive and
judiciary branches of government has been adequately implemented, but even
they concede that the guarantees vouching for independence of independent
bodies are insufficient.
– The independence of the judiciary as the third power: only 2% of citi-
zens and 9% of politicians think that the principle of judicial independence
has been upheld. But even they agree that judges should be elected by an
independent body, without exceptions, even for the first appointment (50%
citizens and 65% of politicians).
– De-politicization (departocratization) of the state is a pressing issue for
all. As many as 60% of the citizens and 69% of politicians believe that con-
stitutional provisions allowing blank resignations should be changed. Both
are aware that achieving this goal calls for more than just changing the law.
Without amending parts of the Constitution dealing with the political system,
it is difficult to establish the accountability of the first branch of government
(the National Assembly) and overcome existing clientilist commitments of the
government, which by default undermine the rule of law and market economy.
Everyone is clear on this: 60% of politicians and 69% of citizens believe that
despite changing the law the constitutional provisions on parliamentary man-
dates need also be changed.
– Harmonized territorial development: 74% of citizens and 67% of politi-
cians believe that the existing Constitution pays too much attention to territo-
rial integrity and too little to the harmonized territorial development.
– Even when it comes to territorial sovereignty, the views of citizens and
politicians do converge: only 29% of the population and 28% of politicians
perceive the Constitution as the right tool to prevent Kosovo from achieving
independence.

Evidently, a joint platform for launching an initiative to change the Constitu-

tion is already in place, especially so as the Constitution contains few values
understood as the lasting legacy of this society (the majority opted for human
rights, forgetting that the Small Charter of Serbia and Montenegro repre-
sented a constitutional act that has had greater merit in terms of guarantee-
ing human rights and freedoms, as can be concluded by comparing the right
to information guaranteed by the Constitution of Serbia and the right to free
access to information guaranteed by the Small Charter; some also specified

010
the example of the multiparty system largely a legacy of Milošević’s 1989
Constitution, etc.).
So why is there no public debate on changing the Constitution?

4. It is interesting to note that the views of citizens and decision makers sig-
nificantly diverge in one aspect: how the Constitution should be adopted.
The position of 67% of the elite is that the Constitution should be adopted
in the manner envisaged by the present Constitution, while 45% of citizens
think that constitutional reform should be carried out by a Constituent As-
sembly.
However it is also certain that both believe that the Constitution should be
adopted in a process of broad public deliberations (91% of the elite and 43% of
the population; the latter piece of data must be interpreted in the context of
the information that 45% of citizens think that a constituent assembly should
deal with this issue).
So why is there no public debate on changing the Constitution?

CONCLUSION
Among members of the elite, 88% think that citizens and their associations –
in a word, civil society – should play an active role in initiating constitutional
changes.
Unlike previous initiatives for constitutional changes, the present one is
based on the research of a respectable sample of citizens (1056) and in-depth
interviews with 94 members of the social elite, including representatives of all
political parties participating in elections.
On the basis of all this, it has clearly been shown that the Constitution has
to be changed. This is why active participants in political life of Serbia owe
to the citizens an answer to the following question: so why is there no public
debate on changing the Constitution?

011
JADRANKA JELINČIĆ

THE
CONSTITUTIONALIZING
OF SERBIA
1. A Constitution is a political document as much as a legal one. In every
society, it represents an expression of political consensus of citizens, that is,
members of a political community, about long-term directions and goals of
development of that society; about values on which this development and
relations in society should be based; and about basic instruments with which
to attain the set long-term goals of development and to protect the upheld
values.
The act of enactment of a Constitution is thus a political and legal social
project, a common civic endeavor, the main carriers and participants of which
are citizens who rally behind it and negotiate. Connected in various horizontal
and vertical social networks, they mutually cooperate in order to align mutual
interests and envisage a common future. The political elites are entrusted with
a demanding and responsible role of an actor who is supposed to inspire, steer
and inform the process of enacting the Constitution and the state has a role
of an actor who is supposed to legally articulate and sanction the achieved
agreement. The effectiveness and longevity of a Constitution in every soci-
ety derives from the way in which it is promulgated: greater participation of
citizens in the political process of reaching an agreement, the higher level
of alignment on the goals of future developments; good understanding of
proposed legal solutions; and absence of any doubt about the political will
of the overwhelming part of the society (in which no segment feels excluded

013
from the community and the agreement) to accept the Constitution articu-
lated in the legal norm make a decisive contribution to gradual transformation
of an adopted constitutional bill into a “iving Constitution,” a norm which is
observed and practiced as a matter of fact, and only exceptionally due to its
binding character. Such a relationship of the citizens and the state towards the
Constitution is the only true criterion for assessing its legitimacy.
The Constitutions are enacted either as a consequence of deep and steep
(revolutionary) changes in the state, society or their social environment (e.g.
in 1989) or when a society and the relations within it evolve to such an extent
that the need arises for a society to be constituted on new grounds and to
introduce new rules of functioning and development (e.g. the enactment of the
Constitution of the French Fifth Republic). It is a moment when the existing
Constitution becomes an obstacle for opening new perspectives or an insuf-
ficient instrument for attaining developmental goals, the moment which János
Kis, making an analogy with mechanics, rightly terms “the constitutional mo-
ment”; it is a moment in which the strength of a need for change is the greatest
and the significance of daily politicizing minimal and when prospects are the
greatest that the new norm would address new needs of society in the most
authentic and far-reaching way.

2. In the state history of Serbia, Constitution has mostly represented “an in-
strument of rule,“ a document written with an aim to ensure a comfortable
rule of an incumbent ruler. The main political conflicts/negotiations unfolded
regardless of the Constitution and there was no shortage of the practice of
breaching, abolishing or ostracizing a Constitution motivated by political op-
portunism. Fifteen Constitutions in less than two centuries of Serbian state-
hood are telling in this regard.
Viewed from this perspective, the event known as “democratic changes“ in
2000 represented what in political sense can be termed “a constitutional mo-
ment.“ At that time, there were few who failed to ask themselves: in what kind
of state and society do we want to live? What are the goals we strive for and
what are the values that guide us in our efforts to attain them? What should
the relationship between the citizens and the state look like? Why is it impor-
tant that this relationship should be the way it should be? What instruments
do we place in hands of the state (concrete institutional arrangements and a
system of state government: areas of jurisdiction, the manner of exercising
their authority, checks and balances) to achieve the chosen goals and observe
the upheld values? The sequence of events from September 2000 to January
2001 has been an expression and a consequence of an unambiguous demand
of the citizens for a new and decidedly democratic constitutionalizing of soci-
ety and its institutions. However, at that time, in 2000/2001, the new holders
of public office, preoccupied with mutual confrontations and entrapped in
daily political discourse, did not feel compelled to change the 1990 Consti-

014
tution. They were quite content with this Constitution, which was enacted
in accordance with the tradition of undemocratic rule stretching to the time
before the establishment of the practice of “socialistic constitutionality.” The
1990 Constitution had to be undemocratic by the nature of things because it
was ostracized by the party which had held a monopoly of power for several
decades, had opposed the freedom of political thinking and organizing and in
the late 1980s had developed an extremely nationalistic ambitions and taken
pride in an absence of desire to change anything in its political practices.
It took as much as six years afterwards to change the Constitution, as an
act that was forced upon the new authorities when Serbia unwillingly became
an independent state so different from any known political myth about itself.
What was supposed to become a new patria for all its citizens has not man-
aged to inspire any segment of the political class to new and reality-based
political endeavor for new constitutionalization; instead, the enactment of
the Constitution was almost hidden from the citizens. The Constitution was
enacted in a narrow circle of presidents of those parliamentary political par-
ties which at the time were represented in the Parliament and was created in
a process of trade-offs between the present social power and the expected
future acquisitions. The Parliament itself merely played a role of the voting
machine and even though a referendum on the Constitution was held, the
citizens of Serbia practically refused to have their say on the new Constitution.
When nuances and democratic rhetoric are put aside, the intention of the
2006 “constitution-makers” was to ensure continuation of the rule of political
parties, however not one but several and to make state institutions suitable for
achieving that goal. It seemed that there were no other political ambitions and
those that existed could not be masked either by the language of patriots (Ko-
sovo) or by the language of Europe-lovers: even if we had not known or had not
remembered the manner in which the 2006 Constitution was enacted, revealing
the true intention of 2006 “constitution-makers” would have been easy anyway.

3. Effective constitutionalizing and efficient functioning of a democratic state

necessarily require that provisions of the existing Constitution be re-read
and re-examined and that guarantees of the principles of the rule of law, the
separation of powers and checks and balances to executive power should
be strengthened in order to discourage a political practice and intention to
undercut them. To that end, what is required is a critical examination of the
Constitution and new negotiations on it that would ensure:
– establishing effective institutional arrangements eliminating every pos-
sibility of the rule of political parties (lifting constitution provisions on blank
resignations);
– strengthening preventive role and control function of independent bod-
ies charged with protecting human rights and eliminating discrimination (the
Ombudsman, the Commissioner for the Protection of Equality, the Commis-

015
sioner for Information of Public Importance and Personal Data Protection) in
order to reduce the possibility of breach of human rights by the Parliament,
the Government and the President of the Republic and forestall their political
and legal self-will;
– effective implementing of the principle of the separation of powers into
legislative, executive and judicial branch of government (independent position
of the judicial branch is today questionable), eliminating any dilemma regard-
ing the nature and the position of independent bodies, reinforcing the guar-
antees of their independence (functional, personal, financial) and preventing
their politicization (election by a qualified two-third majority).

The perspectives of economic development and the effective functioning of

the market, on which equality and efficiency of economic subjects are based,
undoubtedly require re-examination of the constitutional text in terms of po-
sition of the judiciary and independent bodies, some of which are not even
mentioned in the existing Constitution (e.g. the Commission for Protection
of Bidders in Public Procurement Procedures, the Securities’ Commission, to
which, as well as to other bodies, it is necessary to ensure full independence
and protection from politicization) and in terms of solving the dilemma about
the difference between public-owned and state-owned property.
Finally, the willingness to accede to the European Union also calls for a
critical reexamination of the Constitution. Already on the level of summary
consideration, it is quite certain that not only it is necessary to resolve the di-
lemma about the relationship between international and domestic law, which
requires revision of the Article 194 which casts serious doubt over the pos-
sibility of direct effect of international law, but it is also necessary to lay a
basis for transference of parts of sovereignty to this supranational community.

4. Even six years after the enforcement of the Constitution, the citizens and
the political elite are united in one thing: the Constitution has to be changed.
This opinion is not shared merely by 10% of the citizens and 5% of members
of the political elite.
If we have obtained an unambiguous answer to the question whether the
Constitution should be changed, it proves that the new “constitutional mo-
ment“ has come. The next question is what exactly is to be done and how to
do it. The answers obtained through the survey of attitudes of citizens and
members of the political elite, as well as in authorial texts of leading experts
on this topic, suggest possible paths. If it chooses the right answers, Serbia
will get a chance to open a democratic process of enacting a new Constitution
and avoid the traps into which Serbian society and state have previously been
falling in the course of their constitution-making history.

016
VLADIMIR ILIĆ

A NEW CONSTITUTION
FOR SERBIA
THE SYMBOLIC FRAMEWORK OF THE CONSTITUTIONAL PROBLEM
Let us be reminded that football player Adem Ljajić was excluded from the
Serbian national football team because he did not want to sing the national
anthem which mentions Serbian lands and Serbian ancestry. Ljajić however
expressed his loyalty to Serbia as his state.
According to the research conducted by the Open Society Foundation and
IPSOS Strategic Marketing agency in October 2012, only every fifth respond-
ent felt that the national anthem ought to be changed. In addition, according
to the results of the same research, less than one half of citizens know the
order of colors on the national flag. The citizens accept the symbolism they
are not familiar with. They accept the symbolism which is imposed upon them.
In Serbia there is a Kulturkampf, which is however a lesser evil than the
previous i.e. recent Balkan wars.
The Constitution expresses and simultaneously develops identity. The Con-
stitution is a basic law in accordance with which all other laws are enacted. The
Constitution sets norms and educates at the same time. The present Constitu-
tion of the Republic of Serbia does not create educated citizens, but merely
confusion in the heads of the people, serving as a basis for cultural-political
struggle for vague ethnic goals and against the nation-state. It is a basis of
ethnicizing the state and exclusion of a large number of its members from
the political community. It reduces human and other state resources. It makes
senseless state policy but resuscitates long and intertwined tails of ethnic
politics from the 1990s. It is synonymous with a whirl of symbolic struggles

017
that replaces reasonable regulation of truly fundamental state questions and
does not promote a reasonable relationship of citizens towards them.
Serbia is at the same time too tired to stick to an open ethnic nationalism
and to manage to free itself from it. The existing Constitution, adopted follow-
ing the three-party agreement among the Serbian Radical Party, the Demo-
cratic Party of Serbia and the Democratic Party and enacted by the Members
of Parliament who have not even read it, is a brake in the name of ethno-
nationalist program which attempts to stymie the development of an idea of
a state by preserving the gist of an ethnically conceived state.
The Constitution provides a conceptual basis for a specific symbolic ethnic
and religious uniting, rather than for the creation of a state as a universal
community of citizens: the St. Sava cult, the religious training in state schools
of a multinational society, religious service in the army of a multi-religious
state, all this has an affirmative character in the sense the term was used by
Marcuse, rather than being truly rooted in the social-cultural milieu of the
country. Saint Sava, upset after many centuries since he had passed away, is
supposed to replace the loss of Knin and the religious training to replace the
loss of control over Vukovar. The Constitution, with the manner in which it
was enacted, its Preamble and contents of some clauses which even inspire
and certainly enable such a state of affairs, hinder the creation of Serbia as a
modern cultural state.

THE ANTI-NATIONAL CONTENTS IN THE EXISTING CONSTITUTION

According to the aforementioned research conducted by the Open Society
Foundation and IPSOS Strategic Marketing, two thirds of citizens think that
the Constitution should be changed. The respondents among the ranks of the
social elite also agree that the Constitution should be changed. Most repre-
sentatives of the elite endorse the constitutional amendments to be made by
observing constitutionally envisaged procedure for amending the basic act,
while huge relative majority of citizens (9 out of 20) demand a Constituent
Assembly.
Furthermore, the results of this research show that eight-ninths of citizens
do not know why the Preamble of the Constitution is important, although it
served to the constitution-makers as the reason for trying to legitimate its
enactment in 2006.
What does the Constitutional Preamble say? “Considering the state tradi-
tion of the Serbian people and the equality of all citizens and ethnic commu-
nities in Serbia and considering that the Province of Kosovo and Metohija is
an inherent part of the territory of Serbia, that it has a position of essential
autonomy in the framework of a sovereign state of Serbia and that such posi-
tion of the Province of Kosovo and Metohija implies that all state bodies have
an obligation to represent and protect state interests of Serbia on Kosovo
and Metohija in all internal and external political relations etc...“ Given that

018
the Province of Kosovo and Metohija is under occupation and international
administration and given that it has proclaimed independence, the bodies of
Serbia cannot fulfill their Constitutional obligations set out in the Preamble
to the Constitution. There is discrimination against certain citizens in accord-
ance with an ethnic principle, which almost amounts to an apartheid: there are
no budgetary allocations for a million and a half citizens in a constitutionally
defined part of Serbia; they are erased from the electoral roll; they do not
have a say when elections are held, polling stations opened, laws and decrees
adopted. The state violates its own Constitution by implementing it ethnically
to the six-figure rather than the seven-figure number of citizens in the area
of the Province of Kosovo and Metohija.
It is indisputable that the state cannot implement its basic act on its entire
constitutionally defined state territory: even before NATO bombing, 40,000
ethnic Albanians and 40 ethnic Serbs lived in the municipality of Glogovac.
The state of Serbia figures as a Serbian state only due to its Constitutional
self-definition, contradicting the self-definition of reality. Such exclusion is
not appropriate for the 21st century. It is a historical cul-de-sac.
The exclusivity of the contents of the Constitutional Preamble is supple-
mented by the exclusivity of a provision of the first Article of the present
Constitution: “The Republic of Serbia is a state of the Serbian people and
all citizens living in it, etc...“ The state is defined first ethnically and then in
terms of citizenship. Such a provision affects state policy which continually
attaches more importance to an internal situation in Bosnia and Herzegovina
or Montenegro or the position of the Serbian Orthodox Church in Macedonia
than to the state of affairs in parts of Serbia itself, with all consequences such
orientation has for Serbia as a whole. It achieves what King Milan had refused
to do: to sacrifice the interests of the Republic of Serbia and its citizens in the
name of ethnically understood Serbdom, whatever it might mean. Serbia is
systematically weakened through this kind of constitutionally-based ethni-
cized anti-national policy.
As Robert Hayden has noted, the “long-term consequences of this system
are even more detrimental: given that the rule of the majority grounds its
political attraction on the claim that it is the most determined defender of
the national interest, every opposition to government can be labeled as an
opposition to the titular nation and its interests.“
Such anti-national policy is in interest of those same party oligarchies
and the associated business cartels which have imposed the Constitution en-
acted in 2006 to the citizens, without a debate either in the wider public or in
the National Parliament, whereby their members have usurped the Republic.
The provision in paragraph 4 of Article 5 of the Constitution forbids political
parties to directly wield state power, but in present-day Serbia, a citizen can
hardly go to a dentist let alone get a job if he or she is not a member of some
of the political parties which are in power at the time. The Law on the Election

019
of Members of Parliament was changed, but not Article 105 of the Constitution
which turns the highest legislative body into a party shareholding. The root of
all-pervasive corruption confirmed in all EU assessments and every-day ex-
perience lies in the violation of Article 115 of the Constitution. For eight years
the President of the Republic was, contrary to explicit provision contained
in this Article, at the same time the president of a political party, the tycoon
circles which supported it and which practically appointed prosecutors and
judges in accordance with their party criteria. The separation of powers to
three branches of government was suspended under the present Constitution.
The anti-national consequences of the three-party Constitution in terms
of its content and manner of enactment are visible not only in the Province
of Kosovo and Metohija, but in entire Serbia. For example, the Autonomous
Province of Vojvodina, economically devastated, culturally changed, socially
pauperized, is distinguished from the rest of Serbia only with a much better
system of protection of minorities. But, frankly speaking, the so-called Voj-
vodina question, as well as Vojvodina itself, is today largely an internal affair
within the Democratic Party.

CONSTITUTIONAL REFORM AS A NATIONAL INTEREST

Comparisons are risky and experiences of others require careful consideration,
just like copying an experience of another requires modification in line with
concrete circumstances in terms of time and place. However, a patriotically-
orientated thought can find in experiences of others elements that can be
applied to the benefit of one’s own state and society.
When the French Fourth Republic was faced with the Algerian problem in
1958, in a way similar to the Serbian problem with Kosovo, given that there
were two million Frenchmen in Algiers who wanted to remain a part of France,
a part of the Army which lacked civilian control, an absence of any kind of
political consensus, a government unable to find a way out of the cul-de-sac
and implement unpopular measures, it changed its Constitution and with mass
support of educated citizens, freed itself, although not immediately, from all
the aforementioned burdens.
When Habermasian understanding of Constitutional patriotism is disputed
in Serbia today as inappropriate for local circumstances, one deliberately ig-
nores the principle that citizens in a democratic society are subjected only
to laws that they have given themselves under a democratic procedure. The
basic act of Serbia was brought not by the citizens, but by the coteries and
it protects their interests to the detriment of the interests of the people. The
national welfare requires that it be changed. The sooner – the better.

020
ALEKSANDAR MOLNAR

SOLVING THE PROBLEM

OF DEMOCRATIC
LEGITIMACY
BY CHANGING
THE CONSTITUTION
OF SERBIA
Few people would today deny that in a modern state there is a need to legitimate
power in a democratic way. The same holds for Serbia. The problems arise when
one attempts to ascertain the contents of democratic legitimacy. In a reduction-
ist variant, it suffices that a government be elected on free and fair elections
with universal suffrage in order to be invested with a democratic legitimacy. The
elections are indisputably an important and irreplaceable element of any kind of
modern democracy, but they do not exhaust the notion of democracy. In demo-
cratic constitutional states which are today EU members, democracy is set within
a larger framework of a constitutional order in which branches of government
are separated, the holders of public office are subjected to control, human rights
are equipped with strong guarantees etc. Given that in such conditions democ-
racy, in terms of elections (and referenda) of regular bodies of government, is
circumscribed, it is very important that the very procedure of enactment of the
Constitution and its amendment be democratized. Thus it could be said that in
any country which is candidate for membership in the European Union, the no-
tion of democracy will become increasingly complex and democratic legitimacy

021
increasingly demanding as the process of European integration advances – but
not due to “European dictates,” but due to an assumption that the process of
European integration is paralleled by the process of overall constitutionalizing
of the state. If democracy needs the Constitution to counterbalance it, than the
Constitution itself should be subjected to the principles of democracy: citizens
have to be appropriately included in all stages of the constitution-making pro-
cess (from election of representatives to the Constituent Assembly to referen-
dum on adoption of the draft Constitution) in order to assume responsibility for
shaping the Constitution, understand it as a social contract which is a result of
compromise and be able to subsequently express their constitutional patriotism.
In the period from 1990 to 2006, Serbia had the so-called Milošević Con-
stitution, which in the last period (2000-2006) has lost any possibility to con-
tribute to democratic legitimacy of the government: as a plebiscitary act of
an authoritarian ruler, it has become synonymous with the negation of con-
stitutionality. The new authorities, which managed to overthrow Milošević on
October 5, 2000 and which immediately afterwards expressed an aspiration
towards membership in the European Union, have made a huge mistake when
they separated the path of European Union integration with the process of con-
stitutionalizing of Serbia. Moreover, during the six-year interregnum, a state of
permanent unconstitutionality was created in which it was impossible for citi-
zens to demand anything more than reduced democratic legitimacy (reduced to
free and fair elections) and be satisfied with very general proclamations about
(future) European integration. The things began to change on November 8,
2006 when the new, so-called Mitrovdan Constitution, was enacted. Ever since
its enactment was announced, the Mitrovdan Constitution aroused contradic-
tory reactions and even disputes – among other things, about its potential, as
the highest political and legal act in Serbia, to raise democratic legitimacy to a
level higher than rudimentary electoral level which existed in the period from
2000 to 2006. The debates soon abated when it became clear that Mitrovdan
Constitution would not even remotely have the significance it was expected to
have at first. However, this has not prevented piling up of problems of demo-
cratic legitimacy in Serbia, especially in early 2012, when Serbia (in the second
attempt) obtained the status of a candidate for membership in the European
Union and when it became clear that separating the path of European Union
integration and constitutionalizing of Serbia has begun to take its toll. If Serbia
intends, after obtaining the candidate status, to take serious steps on the path
of European integration, its political elite will no longer be able to contend itself
with debatable (“facade”) Constitution and reduced democratic legitimacy. This
is a result not merely of “European dictates” but of political maturing of citizens
of Serbia, who already at this moment make much greater demands than those
that can be met under the terms of reduced democratic legitimacy and who,
sooner or later, would make a demand for an adequate constitutionalizing of
Serbia as a precondition for further progress of its democratization.

022
 To contribute to better understanding of this progress, the Open Society
Foundation has engaged IPSOS Strategic Marketing Agency to conduct a re-
search surveying:
– how do (political, social and intellectual) elite and citizens of Serbia per-
ceive the existing constitutional situation in the country, and
– whether the political elite has an intention to use elections on May 6 and
20, 2012 to improve the existing constitutional situation thus responding to
the need to meet higher standards of democratic legitimacy.

The results of the research conducted between October 2011 and February
2012 enable us to draw three basic conclusions:
– firstly, as expected, the entire – including political! - Serbian elite does
not perceive the Mitrovdan Constitution as the highest legal and political act in
Serbia (although it ought to be, according to legal and political theory), but only
as a document of marginal legal and even more marginal political importance;
– secondly, the citizens are aware that the Constitution ought to play a more
important role in political life of the country (and in their private lives – especial-
ly in the field of human rights protection), although they do not know what kind
of role exactly and have only vague and rudimentary familiarity with clauses of
the existing Constitution, blaming the state for their ill-informedness.
– thirdly and finally, both citizens and elite members have drawn lessons
from mistakes made during the enactment and implementation of the Mitro-
vdan Constitution, which creates preconditions for upcoming constitutional
changes to lead to rehabilitation of constitutionality in Serbia and enable
further progress of democratic legitimacy.

That the elite considers the Constitution a document of little real importance
is attested by low overall assessment of the contents of the Constitution (2.8
on a scale from 1 to 5), as well as its influence on main social and political
events in the country. Assessing the five-year period since the Constitution
took effect, the entire one quarter of respondents among the members of the
elite maintain that nothing has changed in the country and three fifths (59%)
that little has changed. Among those who noticed some changes after the
enactment of the Constitution there is almost ideal divide between those who
maintain that changes are negative and those who recognize some positive
achievements. Among the latter, the big majority recognized positive achieve-
ments in the corpus of human rights clauses, although there is widespread
opinion that these changes have not had real effect in legal life, given that
constitutional clauses which regulate human rights often remain a dead letter.
As far as citizens are concerned, most of them are aware of the significance
the Constitution is supposed to have in their lives now (51%) or in the near fu-
ture when the process of European integration advances (7%). However, a great
majority (79%) knows nothing or very little about the Constitution and somewhat

023
lesser percent of respondents (72%) say that they are not acquainted even with its
most important part, namely their constitutionally guaranteed human rights. The
lack of knowledge about constitutional clauses has not prevented the respond-
ents to assess that human rights in Serbia today are mostly not observed (con-
trarily, every fifth citizen thinks human rights are observed mostly or entirely).
Both the citizens and the entire elite mostly blame the state for such a
situation (52% of the former and 53% of the latter). For five years it has done
nothing to acquaint the citizens with clauses of a document that aspires to be
the supreme legal and political act. However, even better knowledge about hu-
man rights can hardly be effective in conditions of non–existence of effective
independence of the judiciary supposed to protect these rights. Three quar-
ters of respondents among the elite members maintain that the Constitution
has not provided sufficient guarantees for independence of the judiciary and
almost the same percentage of interviewed citizens (73%) said that the recent
ill-conducted reform of the judiciary threatened even the existing levels of
constitutional guarantees of an independent judiciary.
All in all, the biggest problems identified by both the elite and the citizens
regarding the existing constitutional situation in Serbia concern, partly, se-
lective application and, partly, neglect of the Constitution; since it is mostly
implemented by holders of public office (when it suits them and regarding the
parts which suit them), the Constitution is nothing but a characteristic instru-
ment of rule, with no wider significance for the lives of ordinary citizens. Thus
the Mitrovdan Constitution today does not have the capacity bigger than the
one the Milošević Constitution had in the period from 2000 to 2006 to meet
the need for further advancement of democratic legitimacy. In the next period
it can be expected that it will become an increasingly large obstacle not only
for further democratization of the country, but also for European integration.
However, since we held that constitutional changes would be necessary in the
period after May 6 i.e. 20, 2012 elections and that the process of social learn-
ing advances, among other things, by drawing lessons from previous mistakes,
we wanted to check out in our research whether the citizens and the elite had
learned something from all the things that resulted in the total loss of purpose of
the Mitrovdan Constitution. The citizens and the elite have completely the same
attitude concerning violations of the procedure during the adoption of 2006
Constitution: the majority of both the former (54%) and the latter (59%) maintain
that an absence of public debate before adoption of the Constitution and the fact
that referendum for adoption of the Constitution had lasted two days are serious
breaches of procedure which bring into question the will of the people. How-
ever, within the elite there are considerable differences in attitudes concerning
repercussions of these violations on democratic legitimacy. Only a smaller part of
the political elite (38%) maintain that such breaches of the procedure bring into
question the will of the people, while the same attitude is much more widespread
among the social elite (64%) and in particular among the intellectual elite (81%).

024
A slim majority of citizens (54%) also believe that these breaches of the procedure
had brought into question the will of the people to adopt the Mitrovdan Constitu-
tion. With all this in mind, the fact that in October 2011 (five years after the “suc-
cessful” referendum following which the Mitrovdan Constitution was adopted) only
39% of surveyed citizens said they would, if the opportunity presented itself, vote
again in a referendum for adoption of the Mitrovdan Constitution, is not surprising.
The research also aimed to establish what the prevailing attitude of the elite
and the citizens was regarding the urgency of constitutional change and the
way in which it should be carried out. As expected, there is a great readiness for
urgent constitutional changes: only 10% of the citizens and 4% of the elite main-
tain that the Constitution should not be changed, although there are differences
regarding the preferred choice of the procedure under which the Constitution
should be changed. While the majority of citizens (64%) unambiguously main-
tain that the Constitution should be changed, only 41% of the elite (members
of the political elite do not differ from the other two factions of the elite in this
regard) share that opinion. The majority of the elite (52%) maintain that the
public debate should be initiated and after it has been completed to see whether
the changes should be made. However, the comments provided by two-thirds of
the elite who gave this careful answer reveal that they espouse constitutional
changes, but expect from the public debate to determine the direction in which
the changes should be made. If these respondents are added to those who
said that they maintained that the change of the Mitrovdan Constitution was
necessary, then the percentage of members of the elite who espouse constitu-
tional changes is significantly increased (to almost 70%). A considerable percent
among them (20% of the citizens and 23% of the elite) advocate the enactment
of a new Constitution, rather than an amendment of the existing one.
There is an interesting difference in attitudes concerning the procedure
of constitutional amendment: while a two–third majority of representatives
of the elite (67%) maintain that constitutional changes should be carried out
by the Serbian Parliament, under the procedure envisaged by the Mitrovdan
Constitution, the majority of the citizens (45%) – every second respondent in
Belgrade! – maintains that constitutional changes should be carried out by a
special (Constituent) Assembly elected directly by the people. Not only that
the citizens are the ones who are overwhelmingly inclined toward complete
discontinuity with the Mitrovdan Constitution that had lost its purpose, but
their attitude also shows that they distrust that the MPs i.e. the political elite
in general, would be able to engage in constitution-making in the way it is
expected of them. It is a message of which the political elite should take note,
regardless of the way in which constitutional changes are in the end adopted.
If a Constituent Assembly is to be able to enjoy democratic legitimacy and
give the crowning feature to its work by successfully conducing Constitutional
referendum, it would obviously have to incorporate among its ranks deputies
who are not professional politicians and who in the eyes of the citizens would

025
represent a guarantee that constitution–making would not (once again) be
made to serve modest but all the more harmful demands of daily politics.
Taking into account the prevailing mood among the elite to proceed towards
constitutional changes but not to embrace the more radical option of constitu-
tional amendment (the Constituent Assembly) and to follow the procedure envis-
aged by the Mitrovdan Constitution, we have assumed that parliamentary elec-
tions scheduled for May 6th, 2012 would be an excellent opportunity for all the
parties to reveal their programs of constitutional changes (i.e. to state whether
they consider that the Constitution should be changed), whereby the new make-
up of the Parliament of Serbia would obtain full democratic legitimacy for chang-
ing the Constitution in an appropriate direction. The majority of the elite also
tended to think the same: 57% of the elite maintain that the topic of constitutional
reforms should find its place in election campaigns of political parties. The same
opinion is shared by as much as 67% of citizens, while the topic of constitutional
changes was important for 42% of citizens to make up their mind to give a vote
to a certain political option, while for 25% of citizens it was important but less
than some other, in their opinion, much more important topic (so this topic is not
able to determine their vote). When these facts are taken into account, it could be
said that both the elite and the citizens have begun to interiorize the fundamental
principle of democratic constitutionalism, namely that the Constituent Assembly
should be formed in accordance with the previously ascertained constellation of
constitutional preferences of be the people itself. However, when the fact is also
taken into account that in previous pre-election campaigns the topic of consti-
tutional changes has not been mentioned by any political party, it becomes clear
that leaderships of political parties and their public relations advisors have de-
cided to bypass this topic as ill-suited for winning votes and to continue to treat
it “pragmatically“ i.e. precisely in the way that has destroyed the legitimacy of the
Mitrovdan Constitution. This raises suspicions that constitutional changes, if they
are taken up at all by this make-up of the Parliament of the Republic of Serbia,
would be approached in a formalistic-ritualistic way, within the boundaries of
“European dictates“ and with a desire to change nothing substantial in the exist-
ing way of functioning of legal and political life of Serbia.
However, it is encouraging that the great majority of the elite (60% - politi-
cal elite 61%) maintain that constitutional changes should be initiated as soon
as possible after parliamentary elections (i.e. after the parliamentary majority
and the government are formed), that the even bigger majority (88% - politi-
cal elite 84%) accepts an active role of civil society in initiating constitutional
changes, while the overwhelming majority (91% - political elite 94%) maintains
that without a public debate any constitutional change would not be serious.
Those are the key preconditions to stop constitutional agony in Serbia in the
coming years and to start building a constitutional democratic state which
would tread the path of European integration not in an ad hoc way, reacting
to “European dictates,“ but pursuing its own inherent constitutional logic.

026
MARIJANA PAJVANČIĆ

THE CONSTITUTIONAL
ISSUE

The Constitution is not an act of a government but an act of a people who

gives itself the government.
H. Vorländer

At the time of major social changes, the act of constitution-making has a spe-
cial importance and the Constitution acquires a new quality. The post-socialist
societies, including Serbian, are characterized by an absence of social prereq-
uisites for establishment of a constitutional state. In such circumstances, the
Constitution is not so much an objective framework for a new community as
an instrument for establishment of prerequisites for a qualitatively different
community. Therefore enactment of a Constitution brings hope about a more
just political order and better life of citizens, because enactment of the Con-
stitution symbolizes the break with previous constitutionaliality by opening
perspectives for citizens to enjoy better life in the future community.
The depth of the constitutional crisis – the continual crisis of constitutional
identity - caused by an absence of a basic consensus on the principles foun-
dational for a community have placed the constitutional issue in Serbia at the
center of attention. The constitutional issue is still open. For a short period
of time, there were chances that the society would start a constitutional dia-

027
logue that would open a possibility to reach a general consensus on the need
to establish qualitatively new foundations of the community and values on
which it is based. However, such a constitutional moment has not been seized.

FOUR ISSUES ON WHICH THE DEBATE ON THE CONSTITUTION

SHOULD FOCUS

1. The constitutional identity

The Constitution is not merely the basic and the highest legal act, but primarily
a founding act of a community, because it projects a new order and postulates
basic principles on which the political community rests, which are widely ac-
cepted and observed by both government and citizens. They define a space of
individual freedom and make possible individual freedom in the framework of
constitutional democracy. Serbia needs the Constitution which will express a
constitutional identity of a community, guarantee human rights, circumscribe
the authority and place it within the boundaries of law. Setting the foundation
for a constitutional state is a minimal systemic precondition for social, eco-
nomic and political changes and a precondition for opening, communicating,
linking and integrating with the neighborhood, Europe and the world.
Reaching a consensus (but not a compromise) on the basic principles
which determine the identity of a political community, not only among po-
litical actors but the broadest consensus among citizens, is a prerequsite for
progress from a pre-political community toward a political community based
on values which command the broadest support of both citizens and govern-
ment. This is the first step towards the establishment of a constitutional state.
This requires opening of the broadest dialogue in society about the values
which shape the constitutional identity of Serbia in order to reach a consensus
among various social actors.

2. Procedural legitimacy of constitution-making

If the Constitution represents the foundation of the normative order of a com-
munity, then the constitution-making power is a point at which origin and
features of this order can be subjected to scrutiny. In a debate about the Consti-
tution and the process of constitutional revision, the procedure sets the frame-
work for activity of constitution-makers and becomes an instrument of acti-
vation of constitution-making power. The procedural aspect of constitutional
revision can assume the role of an indicator and a measure of legality and
legitimacy of the constitutional process. Therefore changes of the Constitution
must have legitimacy both in terms of content and procedure. The readiness to
acknowledge the importance of both segments of the constitutional-making
process increases the prospect for reaching the constitutional consensus. The
choice of the procedure under which the new Constitution should be enacted

028
is not just a technical question. The procedure has an important substantial
meaning. The procedure of enacting the Constitution defines the rules of
communicating the basic values on which the community rests and which all
citizens, as well as the government, are ready to acknowledge and observe. It
facilitates the constitutional dialogue about identity of the community and
may contribute to reaching basic constitutional consensus on values and prin-
ciples on which the community is founded upon. The procedural legitimacy can
prompt and facilitate constitutional transition. But it can also be an obstacle to
constitutional changes. The choice of the procedure of constitutional revision
is therefore an important anterior question.
If the Constitution is understood as an act in which citizens define the
space of freedom in a constitutional state, then actors of the constitution-
making process cannot only be representatives of a parliamentary majority,
nor can political elites be considered exclusive constitution-makers. Other
social actors (civil society, trade unions, experts...) and primarily citizens ought
to be included in the constitutional debate and the constitution-making pro-
cess. It is their right to take direct and active part in the constitutional debate
and dialogue about constitutional identity of the community.

3. The procedures (instrumental function of the Constitution)

Whether the Constitution fulfills its role as an act which guarantees the space
of individual freedom and sets clear framework which dispels self-will and
arbitrariness from political life - is a crucial question of a constitutional state.
The capacity and the role of procedural rules may serve as indicators of the
degree to which the Constitution has a potential to enable functioning of a
state in a constitutional way. For a Constitution to be able to meet an expecta-
tion to set the framework, in accordance with criteria of a constitutional state,
establish instruments and define the space in which, within constitutional-
legal field and in accordance with laws, it is possible to resolve conflicts in
a political community, certain conditions have to be fulfilled, which require
answering several questions first.
Is there an agreement within the constitutional system about who decides
in case there is no agreement? Resolving conflicts in the political commu-
nity is possible under the assumption that previously there is consent about
procedures for resolution of conflicts and the readiness to acknowledge and
observe them.
Are there procedures within the constitutional system sufficiently capable
to be a reliable guide for resolving conflicts in accordance with a law and
within constitutional limits?
Is the government acting within the confines of the law? Is it bound by
procedures which curb its power? Are there instruments which ensure that
the government is forced to act within the confines of the law, especially when
there is no agreement about how to resolve a conflict?

029
 If this is not the case, the space for resolving conflicts will be found out-
side the Constitution and instruments with which they would be resolved will
reflect the circumstances which characterize the political community. The con-
flicts will be resolved in an extra-constitutional space.

4. The institutions
No less important is the question about establishment of effective institutional
arrangements which make the government act within the confines of the law
and guarantee a distance from a party state not only in principle but also
through concrete operationalization of status of institutions, their competen-
cies and mutual relations, thus eliminating every possibility of direct rule of
political parties.
It implies reliable, clear and effective constitutional guarantees of separa-
tion of powers into executive, legislative and judicial branches of government
(in organizational terms – status of institutions; in functional terms – their
mutual relations; in personal, financial, etc terms; their responsibilities as well
as instruments of checks and balances), especially firm and reliable consti-
tutional guarantees for independence of the judiciary, creating conditions for
external control of holders of public office by citizens and their associations
and, in particular, independent bodies established to serve the same purpose.

030
OLIVER NIKOLIĆ

THE CONSTITUTION
OF SERBIA AND THE
PROCESS OF EUROPEAN
INTEGRATION
The question is often posed whether there are constitutional obstacles for
integration of the Republic of Serbia into the European Union. To answer this
question, it is necessary to distinguish between two things: the process of
integration of the Republic of Serbia into the European Union and the very
accession of the Republic of Serbia into the European Union. Serbia is pres-
ently between the stage of obtaining the candidate status and the stage of
opening negotiations with the European Union. In other words, it is well on the
way of integration into the European Union, but still very far from member-
ship and all the rights and obligations ensuing from it. “Since Serbia is not a
member of the European Union and has not assumed the obligations ensuing
from the founding treaties of this integration, which require ceding of certain
areas of jurisdiction to Union institutions, the legal order of Serbia and not
the principle of direct effect developed by the European Court of Justice in
Luxembourg should remain the proper frame of reference for assessing valid-
ity and effectiveness of these decisions in the domestic legal order.“1 It means

1) Primož Vehar, 2006. “Iskustvo nove zemlje članice Evropske unije na po-
dručju harmonizacije zakonodavstva” (“The Experience of a New Member
State of the European Union in the Field of Approximation of Legislation“).
Srpska pravna revija 3.

031
that there are no direct constitutional obstacles for the integration process
itself i.e. no need to change the Constitution of the Republic of Serbia. But
before Serbia acceeds to the European Union it is necessary to make certain
constitutional revisions that will enable direct effect of the EU law and ceding
of parts of sovereign areas of jurisdiction to EU institutions. In the European
Union there is supremacy of the Community2 i.e. EU law, which means that EU
legal regulations take precedence over the legal systems of member states.

THE RATIFIED INTERNATIONAL TREATIES AND GENERAL RULES OF

INTERNATIONAL LAW IN THE HIERARCHY OF GENERAL LEGAL ACTS OF
THE REPUBLIC OF SERBIA
In the eight chapter of the Constitution of Serbia which deals with constitu-
tionality and legality, in Articles 194 and 195 the hierarchy of general legal acts
is specified. The Constitution is the highest legal act in our legal system and
all international agreements, laws and other general legal acts have to be in
compliance with it. The Constitution explicitly envisages that laws and other
general acts of Serbia cannot be in noncompliance with the ratified interna-
tional agrements and general rules of the international law. The internatonal
law, which takes direct effect, has thus become an integral part of the domestic
law and takes precedence over the domestic legislation. The generally accep-
ted rules of international law are placed at the same level as the Constitution,
unlike ratified international agreements which may not be in noncompliance
with the Constitution. The legal and terminological imprecision of writers of
the Constitution, who in Article 16 on the basic principles of the Constitution
state that ratified international agreements have to be in compliance with the
Constitution and in Article 194, paragraph 4, state that ratified international
agreements may not be in noncompliance with the Constitution, is uncommon.
Such inconsistency of writers of the Constitution brings legal insecurity and
opens a possibility of various interpretations of the provisions that ought to
be fully indisputable.
The precedence of the Constitution over ratified international agreements
is not an uncommon principle and can be found in many constitutions of Eu-
ropean Union member states. It practically means that ratified international
agreements which are in contradiction with the Constitution do not have legal
effect within domestic law, although they might have a binding character on
the Republic of Serbia from the standpoint of international law. Therefore it
is necessary to establish mechanisms which would make fully impossible rati-

2) The Community legal system is made up of primary and secondary sources

of the Union law. The primary sources are founding treaties with all subse-
quent amendments, annexes and protocols, and the secondary sources are
regulations, directives and decisions as binding acts, and recommmenda-
tions and opinions as non-binding acts. Only regulations have a general
character, are fully binding and take direct effect in all member states.

032
fication by the National Parliament of those international agreements which
are in contradiction with the Constitution. The Constitutional Court would
certainly be an ideal control body for assessing constitutionality of interna-
tional agreements, as it is competent to decide on alignment of laws and other
general acts with the Constitution, the general rules of international law and
ratified international agreements as well as on alignment of ratified interna-
tional agreements with the Constitution.

INTEGRATION CLAUSE
An integration clause means transferring certain legislative areas of jurisdic-
tion to European Union institutions, achieving direct effect of application of
EU law onto domestic law. No European Union document specifies a date i.e.
deadline by which the so-called integration clause should be incorporated into
the Constitution, but without it membership in the European Union is not pos-
sible. An analysis of compаrative legal practice of constitutional amendments
of states that have acceeded to the European Union also fails to yield an an-
swer when the most optimal time to carry out constitutional reform would be.
A large number of states that acceded to the European Union in 2004 changed
their constitutions and incorporated an integration clause only in later stages
of their candidacy for EU membership. From the present-day perspective, in
Serbia there are small chances that any constitutional changes would be made
in foreseeable future, primarily due a lack of political unity on the issue.
Considering that it concerns transferring certain areas of sovereign juris-
diction of the state to the European Union and that under the Constitution of
the Republic of Serbia holders of sovereignty are citizens of Serbia, without
a referendum а decision on a transfer of sovereignty would be neither legal
nor legitimate. The question is posed whether a constitutional referendum
alone would suffice or whether it would be necessary to organize a special
referendum in which citizens would decide on transferrence of sovereign ar-
eas of jurisdiction and simultaneously on accession to the European Union.
A referendum on accession of a state to the European Union was held in all
states which signed a Treaty on Accession to the European Union, so it is to
be expected that in Serbia too the citizens would decide publicly on this ex-
tremely important question. The more so because it is certain that there is no
full consent of all political parties on acession of Serbia to the European Union.

OTHER ISSUES
Other issues of concern are the Articles of the Constitution which should be
aligned with specific standards of the European Union. These are primarily
an area of electoral law (primarily to enable participation of foreign nation-
als in local elections), citizenship rights, extradition of own citizens to other
states and the right of foreigners to buy and sell immovable property. There
is no general consensus about these issues among the EU member states

033
themselves (especially concerning the issue of extradition), so these issues
should be viewed within a comprehensive approximation of our law with ac-
quis communautaire.

THE CONCLUDING REMARKS

Even though in principle there is a political consensus concerning Serbia’s
integration into the European Union, it is difficult to believe that votes of two
thirds of Members of the National Parliament would be cast in favor of chan-
ging the Constitution. Therefore it is not surprising that some experts as well
as politicians already point out that accession of Serbia to the European Union
also inevitably implies changing the Constitution, in an effort to raise aware-
ness of the MPs that they would have to consider this issue. Unfortunately it is
sometimes the case that under the guise of the topic of constitutional changes
some attempt to promote their own party or even personal goals. After all, we
have to be aware that the 2006 Constitution was enacted on the basis of hea-
vily wrought out political compromise of the strongest parliamentary parties
and that integration into the European Union was only an idea of secondary
importance. It is often heard that the greatest advantage of this Constitution
is somewhat easier procedure of amending it or enacting a new highest legal
act. Considering the manner in which the text of the present Constitution was
written, primarily its urgency, non-transparency and political egocentrism, it
is necessary to begin preparations for its amendment in due time, constantly
bearing in mind a calendar of accession of future states to the European Un-
ion. And it has already started to run.

034
LJUBOMIR MADŽAR

THE LIMITED RANGE

OF CONSTITUTIONAL
ADJUSTMENTS:
CONSTITUTIONAL
REGULATION IN
THE FIELD OF
ENTREPRENEURSHIP
AND ECONOMY
1. INTRODUCTORY REMARKS: CONSTITUTIONAL REGULATION AND ITS
COMPLEMENTING INSTITUTIONAL ARRANGEMENT
The Constitution is only one among many factors which determine efficiency
of business operations and developmental potentials of an economy. Some of
its clauses are certainly a necessary condition for rationality of economic ac-
tivity, but they are far from being a sufficient condition. Actually, the real work
in building a socially rational economic order begins only once a Constitution
has defined general preconditions and has ensured that this fundamental level

035
does not pose dysfunctional obstacles or parallel regulatory hindrances. When
economic regulation is concerned, it is reasonable to expect that the Consti-
tution should not impose counterproductive impediments and should open
possibilities for developing a regulative order that would ensure prerequisites
for unhindered business operation and effective use of available resources.
Bearing in mind the afore-described place of the Constitution in the institu-
tional arrangement, especially the part which coordinates economic flows and
enables realization of socially acceptable trajectory of economic development,
there are three major groups of problems concerning the present Constitution
that can be identified. The first concerns the standard, conventional elements
that find their place in constitutions of more or less all countries. The second
concerns non-economic elements and relations which are not mentioned in
the economic segment of the Constitution but which are nevertheless of huge
importance for forms and degrees of coordination of economic flows and the
ability of an economy to harness available resources and efficiently valorize
them. The third concerns specific requirements and regulatory arrangements
which are not common in comparative constitutionalism, but which ought to
be recognized as purposeful and even necessary in the given specific features
of the social fiber in Serbia, in particular its political fiber.

2. THE ABSENCE OF REALIZATION OF CONSTITUTIONAL PRINCIPLES

Regarding the first group of problems pertaining to elements of the Constitu-
tion which are important for economic life and are usually present in constitu-
tions of most countries, there is nothing to object to the existing Constitution
of Serbia, at least at the highest, abstract level of analysis. Regarding standard
elements that are present in practically all comprehensively conceived con-
stitutions, the existing Constitution of the Republic of Serbia does contain all
necessary regulation. This group of elements contains three key complexes
which determine constitutionally ordered economic life in a far-reaching and
thorough-going way. These are (1) entrepreneurship and freedom of economic
initiative, (2) property and (3) contracts. The protection of contracts repre-
sents an inevitable prerequisite of financial discipline without which normal
functioning of market economy is unthinkable. The previous constitutions of
the Republic of Serbia and its anterior states have not fulfilled this minimal
condition. The constitutional regulation guaranteeing economic freedom has
evolved along a somewhat interrupted but steadily upward line in the past
two decades. Until the Constitution was adopted in September 1990 by the
then one-party Parliament (cf. Uvalić 2012, p. 68), the economic system was
predominantly characterized by strict limitation imposed on private property,
practically amounting to a ban. The blocking of private property also neces-
sarily blocked private entrepreneurship which is the source and the carrier
of developmental initiative in market economies. Practically blocked private
property and entrepreneurship has consequently almost equally limited – i.e.

036
practically banned – a space for a contract based on individual initiative and
full business autonomy.
The 1990 Constitution has widely opened the door for private property and
entrepreneurship. It has achieved this epochal liberalization by proclaiming
the equality of all forms of property ownership, including especially private
property. It was the first major step in epochal task of institutionalization of
market economy, but it was far from sufficient. The socially-owned property
has already at that time been recognized not only in economic theory but
also in empirical studies as an obstacle which is difficult to overcome in states
introducing market economy. Therefore the next major step was needed to
exclude socially-owned property from the forms of property permitted by eco-
nomic regulation over the long term, stipulating that valid forms of property
ownership are private, collective and public property. This step was taken with
the adoption of the Constitution in October 2006. The consequence of this
constitutional principle was that it gave a legal basis for the process of “trans-
formation of remaining socially-owned property into private property“ (Article
86 of the 2006 Constitution, cf. Uvalić 2012, p. 268). On the conceptual level,
this solution was fully consistent with the need to provide an institutional
foundation for market economy. Thus, when the constitutional arrangement
is concerned, this principle remains unobjectionable even today.
Many other things which are and remain outside the Constitution have
however impeded institutionalization of this principle. They include for ex-
ample a strategic decision, which ought to have been made definitely and
simultaneously with adoption of the Constitution itself – as a one-off act, to
abolish socially-owned property. Instead, it was decided to dispense with it
through a protracted, gradual, uncertain and indecisively steered process of
privatization, which has not been completed even today despite successively
set deadlines for its completion and consequently for freeing society from this
form of property. Within less than five years, four such legal deadlines were set
(2006, 2007, 2008 and 2009), but even today some 640 socially-owned com-
panies are still in operation, economically sustained only due to huge state
subsidies even though they do not have any economic future (cf. The Fiscal
Council of the Republic of Serbia 2012, pp. 131-169, especially 131-2, 152-169
and 162-3). Motivated by the desire to keep jobs at any cost, the decision to
keep them afloat is from purely economic point of view one of the biggest
strategic failures and a heavy cost is to be paid for the lack of political will to
energetically and in one big stroke dispense with socially-owned property. In
addition to direct subsidies, huge bulk of the enormous social cost of pain-
ful stalling to dispense with socially-owned companies is their unfavorable
impact on the rest of the economy, primarily the private sector. These compa-
nies are one of malign sources of enormous insolvency of the economy which
has paralyzed its entire branches. There is a high degree of consent among
economists (cf. Kovačević 2010, Zec and Radonjić 2010) on harmful effects of

037
such a long, slow and, on many accounts, banefully dysfunctional privatization.
A part of the expert public is so obsessed with slowness of privatization and
belatedness of reforms which usually accompany it that they even title some
of their papers with questions “is Serbia in or awaiting transition“ or “what is
the cost of unused possibilities“ (Cerović 2012, p. 50, 599).
This empirically confirms and drastically illustrates the point which is the
main point of this paper. Namely, the Constitution is important and useful
only to the degree to which it does not hinder irreversible and thorough-
going decisions which shape institutional scaffolding of the market economy.
It would seem that the same point, without major qualifications, also stands
for other major areas of life. However, when after a painful and hazardous
trajectory along the toilsome path of being liberated from dogmatic ideologi-
cal prejudices, the Constitution finally liberates a space for real institutional
reconstruction, the degree to which the space finally freed by the Constitution
is used depends on the political will, administrative capacity, knowledge and
expertise, entrepreneurial spirit of actors empowered for institutional adjust-
ments and even financial possibilities of numerous actors supposed to use the
space, which the Constitution has finally freed, in real life. The main actors
of institutional progress are fully outside the scope of the Constitution, often
assuming quite a big institutional distance from it.

3. ECONOMIC IMPLICATIONS OF CONSTITUTIONALIZATION

OF EXTRA-ECONOMIC AREAS
The economy never operates in a social vacuum. The behavior of economic
subjects, especially their entrepreneurial engagement, essentially depends
on the manner in which and security with which human (and minority, as their
constituent part) rights and freedoms are regulated: from an arrangement
through which the authority is limited to seriousness with which society is
determined to protect an individual from state violence. A proper institutional
protection of rights and freedoms means that individuals and their organiza-
tions are unhindered – without any fear that change of regulations would harm
or thwart their efforts – to embark on major entrepreneurial projects and suc-
cessfully deal with inevitable and considerable objectively conditioned risks
with which any entrepreneurial endeavor is faced with. If objectively existing
uncertainty is augmented by institutionally generated one, entrepreneurship
is drastically undermined and developmental impulses of an economy sap
precisely where they are supposed to be the most numerous and powerful.
This also holds for fundamental economic principle, which is important and
inescapable, but absent in Serbia, of strict correspondence between produc-
tive contribution and reaped rewards and the principle of associating con-
sequences with the sources of jurisdiction i.e. the instance which brings the
decisions. It is merely formalization of an obviously imperative principle that
as a rule, everyone should bear consequences of their actions.

038
 In the field of human rights and freedoms - the field which is decidedly-
extra-economic - constitutional regulation is of primary importance for eco-
nomic development and overall progress. And it is precisely the Constitution
which sets the foundation for a free society in this regard. However, when
human rights and freedoms are concerned, it is also true that the Constitu-
tion is merely a necessary but not a sufficient condition; however, the con-
nection between the Constitution and reality in this respect is much more
straightforward and direct. The society with properly institutionalized rights
and freedoms will have a larger number of entrepreneurs, actors who em-
bark on new combinations and previously unexplored ways of valorization
of resources. The security of appropriation of profits from risky enterprise is
of primary importance for prompting individuals to engage in these vitally
important innovative activities. The constitutional pillar in this respect – from
the economic point of view – is much more important than pillars in other
respects. A good constitutional regulation ensures maximizing of the number
of actors who embrace entrepreneurship; the security of appropriation of re-
sulting profits, in addition to the number of such actors, maximizes the level
of interestedness of an individual for such innovative behavior. The Constitu-
tion also has a task to be a mainstay of the security of contracts and provide
adequate arrangements to ensure it, thus enabling the actors to effectively
combine entrepreneurial ideas with financial means through which they are
able to be realized. Namely the ideas are not evenly distributed in society and
do not necessarily correspond to the funds that are necessary to be mobilized
to realize them. The security of contracts – which, sadly, is degraded in Serbia
in the most blatant way – enables and ensures that those who have ideas are
able to secure funds for realization of those ideas and that, on the other hand,
those who invest can be sure that what they had invested will not be easily
lost and that they will be able to claim a part of the profits from realization of
the idea which is rightfully theirs under the complex contractual arrangement.
The manner in which the Constitution regulates all these relations – from
economic freedom, which primarily signifies freedom of entrepreneurship, to
security of contracts, which regulates relations among numerous, functionally
differentiated participants in various enterprises – is of crucial importance
for developmental potential and sustainable progress of a society. According
to authoritative assessments (see Molnar 2012, Pajvančić 2012), the existing
Constitution has neither fully attained international standards in this impor-
tant respect nor has offered sufficiently firm guarantees of economic freedom
as a determining component of developmental potential of a modern economy.
Even when a Constitution properly regulates this complex and vital set of
relations which in the long run determine a society’s progress, there are risks
that huge potentials of wide-ranging and constant entrepreneurial engage-
ment will remain unrealized. The reason again lies outside rather than within
the Constitution itself. In chronically problematic society such as Serbian, the

039
egalitarian syndrome is one of the most pronounced characteristics (Sekulović
2004, pp. 47-54, 65-6). In such a society there are insurmountable pressures
which undermine affirmation of the principle of full appropriation of profits
and full bearing of consequences of entrepreneurial activities. There is no
need to go a long way to prove that this also precludes full utilization of huge
developmental potential contained in freedom as ultimately the most powerful
production force in society which can be realized when freedom exists. One
can say with certainty that even the existing Constitution of Serbia has practi-
cally attained world standards by fundamentally regulating economic freedom,
although there is certainly ample room for improvement, but operationaliza-
tion of this freedom through a system of laws and bylaws has remained far
below those standards. The same also pertains to a system of staffing deci-
sions in institutions, institutions themselves, agencies and information sys-
tems which are supposed to ensure that these lofty ideals are brought to life.
Judging by other papers in this collection, the Constitution contains a
number of elements which are necessary for valorization of human rights and
individual freedoms but, according to assessments made in these papers,
there is ample room for improvement. The warning by M. Pajvančić (2012) is
particularly strong: the need for firmer guarantees of checks and balances of
a system of government, a clearer definition of a sphere of individual freedom
which ought to be inviolable, but the exercise of which ought not to infringe
the corresponding spheres of other individuals. What is also necessary but
now badly missing is the citizens’ trust in the state as an institution without
which no policy, including economic policy, can be effective (cf. Blanchard
2006/1997, pp. 364-368) and which has to be earned by the government’s
scrupulous behavior and consistent fulfillment of promises that are made.
Failing that, the interaction between the government and economic actors
(including citizens) degenerates into a hardly predictable and mostly destruc-
tive process which can be described in terms of the game theory as a compli-
cated and prohibitively complex dynamic constellation in which constitutional
rights and freedoms, no matter how they are formalized, cannot be exercised.
It follows that even a perfect constitutional regulation of rights and freedoms
cannot produce a particular effect in a social milieu in which there is incon-
sistent, violent and corruption-burdened (or at least corruption-perception-
burdened) state and distrustful, defense-reactions-prone citizens and their
economic and other organizations. These pernicious failings are additionally
exacerbated if constitutional regulation itself has not been able to attain con-
temporary civilizational standards.
It could be said that this line of reasoning leads to the conclusion that
has already been made: namely that key difficulties and greatest obstacles to
modernization of this society do not inhere in the Constitution itself and the
way in which it has regulated certain areas, but outside it, in general social
conditions and difficulties of operationalization of constitutional regulation

040
through complementary regulation and appropriate agencies. The difficult
axiological legacy of Serbian society is a marked absence of tolerance of
economic differentiation, manifested in differences in income and wealth - a
direct and most pernicious manifestation of the aforementioned egalitarian
syndrome. The consequence and component of this syndrome is the destruc-
tive phenomenon that could be called tycoonization. It is an intensive hate
towards those who have in difficult past times – as well as in present times
– found ways to be successful in business. One hears all the time about il-
legal accumulation of wealth – as if in the legal chaos which has existed in
Serbia businessmen have been able to conduct their businesses strictly in
accordance with the law – it is loudly insisted on squaring of accounts and
punishment, and politicians earn ample political points with the naive and
ill-informed electorate by prosecuting successful businessmen. The relation-
ship towards the business elite is an area in which there is a “bewildering“
harmony between the political elite and the electoral base. It only remains – if
such campaigns continue – to be seen who will employ the huge army of the
unemployed and those who come to the labor market fresh from school and
who additionally swell their ranks. The conclusion: in a desperate economic
situation and perverse political climate that can hardly generate any reason-
able policy, polishing of constitutional clauses would yield meek results. No
matter how successfully we might improve these clauses, one should not raise
high hopes that they could stop the present sliding towards the bottom in the
civilizational sense. The limitations, obstacles and exacerbating dynamic ten-
dencies in the economy and outside it are far removed from the Constitution
and do not inhere in its provisions.

4. CONSTITUTIONAL COMPLETION THROUGH NON-STANDARD

MECHANISMS
The introduction of this paper has classified economy-related constitutional
provisions into three groups: the elements which lie outside the Constitution,
the elements which inhere in the Constitution but do not pertain to economy
although they crucially determine the extent of social valorization of eco-
nomic resources, and the third quite separate group of specific mechanisms
which should be incorporated into the Constitution given the specific features
of the social fiber of Serbia. As a country of pervasive national, ethnic, reli-
gious, cultural and symbolical heterogeneity, Serbia is consequently politi-
cally heterogeneous. Not so long ago it was reported that the country has
some 600 officially registered political parties and until very recently, the
strongest party in terms of the number of voters and parliamentary seats was
occupying the very fringes of the political spectrum. This fact, together with
constitutionally defined proportional electoral system, produces weak, politi-
cally unstable, in economic policy and other spheres of life, conspicuously
inconsistent governments. The domestic literature has thoroughly analyzed

041
these governments (see Begović and Mijatović, eds, 2007, pp. 14-16; Madžar
2011, pp. 193, 459-460). Here it suffices to mention their instability, frequent
falling of governments and their need to bend to huge pressure to meet all
kinds of by no means modest demands of various coalition partners. Even an
insignificant partner, with marginal support among the electorate, can bring
down a government if its demands are not met, by withdrawing parliamentary
support.
In addition to many weaknesses of such governments, what is important for
this context is their literally pathological, indeed malignant tendency towards
public consumption. It cannot be otherwise because a wide range of aggres-
sively made demands has to be met. One should only remember unhealthy
increase of pensions and public sector salaries ahead of practically all previ-
ous parliamentary elections. This devastating tendency has been approved
and additionally exacerbated by opportunistic behavior of the electorate who
has extremely short-time horizons: it is in the nature of things that such elec-
toral corruption is always short-sighted; ephemeral improvements have their
multiple high costs in a timeframe which is not even particularly long. The
political opportunism of the ruling parties is additionally provoked by destruc-
tive inter-party competition, the consequence of which is inability of political
survival of anyone who does not play the game of economically pernicious
present quid for the much more pernicious future quo.
The afore-described is the reason why one should incorporate into the
constitutional system of Serbia a somewhat unusual mechanism of limitation
of public consumption. There is already something like that in Serbia, but is
regulated by law rather than by the Constitution. This limitation should be
upgraded to the constitutional level. A parallel practice is not unknown in
comparative practice and has quite a respectable tradition in the USA. The
unprincipled political trading (the notorious logrolling or horse trading) has
produced a pernicious tendency in the US Congress which has led to expan-
sion of the state and macro-economically very harmful – not to mention the
detrimental impact on developmental potential – increase of participation of
public consumption and tax burden in the GDP of the USA. What is particularly
dangerous is irresponsible issuing of various bonds, which increases political
rating of an incumbent government but in the long-term perspective, to be
borne, with huge and actually dynamically unsustainable costs, by members
of future governments. Serbia has already experienced similar dynamic sub-
stitution of current benefits for much larger future costs, given that today
it bears the costs of serious burdens ensuing from various bonds that were
amply issued during the time of self-management socialism. The problem is
actually global, but its difficult reflection in Serbia has made it similar to the
USA. It is natural that the problem which is so huge should trigger a reaction
in the shape of defense institutional adjustments. Therefore in the USA there
is a practice of constitutional limitation of tax burden and public consumption,

042
although its results so far have been ambiguous. Serbia needs such legislation
i.e. constitutional regulation incomparably more.
In order to rein in public consumption, the Constitution of Serbia should
introduce at least two limitations. For the start, these two limitations should be
the ones which already exist at the level of a law: the upper limit of the share
of public deficit in the GDP and the ratio of public debt to the GDP. At this
abstract level it is sufficient to suggest such general limitations. If these two
limitations are incorporated in the Constitution, they should be complemented
with further operationalization of these important institutional obstacles to
the expansion of the state and extraction of increasingly scarce resources of
this financially exhausted society. Naturally, the question immediately arises
how such limitations could be truly observed, how it would be possible to
make the state observe the laws it itself has brought, how the incumbents
should be made to memorize the well-known Latin saying Patere quam ipse
fecistilegem. The first element of the answer to this certainly difficult question
is already mentioned elevation of the issue from the legal to the constitutional
level. However, many will justifiably object that nothing is sacred to the in-
cumbents and that they would equally shamelessly violate the Constitution
as they violate the law. The answer to this delicate question could lie only in
constitutionally envisaged sanctions.
The incorporation of effective sanctions is not easy, but is perhaps also
not quite impossible. However, one should warn that in Serbia the separation
of powers is seriously relativized to the point of inexistence. In an absence
of separation of powers, sanctions for violating the Constitution are almost
impossible to impose. In the political system of Serbia, separation of powers
has been annulled by the notorious vertical division of power (Begović and
Mijatović, eds, 2007, p. 16; cf. Madžar 2011, pp. 216, 219, 355). The vertical
division of power is a consequence of the need for the strongest party within
the governing coalition (“the guardian of the coalition“) to offer attractive
conditions to its junior partners. This boils down to a vertically cut portion
of the political command apparatus and public administration. The partner is
offered to control all management levels of a segment apportioned to him.
A participant in the government holds all positions within this segment, from
the Minister to the State Secretary, CEOs of public enterprises and “chiefs of
departments and doormen.“ It is a problem that has to be overcome. There is
one thing that might give hope of a remedy. It has recently been suggested
(Pešikan 2012) – although in a different context – that every party in an elec-
tion campaign should precisely and numerically specify the exact performance
indicators it promises to achieve (GDP growth and inflation rates, reduction
of the unemployment rate, possibly results in the field of foreign trade and
external economic relations...). In case it is elected and does not deliver on
those promises, such a government should be forced to step down, its parlia-
mentary majority to be dissolved and new elections to be called.

043
 For reasons the explanation of which would exceed the space we have at
our disposal here, such a proposal is not plausible. However, solution could
perhaps be found in somewhat less ambitious proposal. The legislative and
the executive branch of government have been firmly fused and are not able
to be separated in the foreseeable future as both originate from the same
centers of power, being products of engineering by political parties which
manage to win sufficient number of votes in elections to form a government
in a certain coalition combination. However, the judicial branch of government
could perhaps be separated from this nexus of power and become truly inde-
pendent. The Constitution does contain strong formulations for independence
of the judiciary and mechanisms of election of judges, including those serving
in the Constitutional Court and the High Judicial Council (Articles 153-155),
which are defined much more specifically than mechanisms which concern
other branches of government. These provisions could be strengthened, es-
pecially so as to extend the tenure of Constitutional Court judges and ensure
asynchrony of their tenure vis-a-vis the tenure of legislative and executive
authorities. In short, if the solution for possible constitutional change briefly
sketched here is to be functional – and hopefully possible – a truly inde-
pendent judiciary is needed, especially at the highest, Constitutional level.
The Constitutional Court could be entrusted with careful monitoring of ups
and downs of public consumption (and, possibly, tax burden); for this task
it could establish a specialized department; if constitutionally set limits are
exceeded, it could be empowered to initiate dissolution of the parliament and
calling of new elections. The technical operationalization of this task could
be additionally elaborated; the act of dissolution of the Parliament could be
performed by the President of the Republic, whose obligation to dissolve the
Parliament in the case of constitutionally specified conditions could also be
constitutionally regulated. There is no doubt that a government, confronted
with such a serious possible sanction, would be prompted to fundamentally
change its behavior. One could thus permanently avoid a risk of public debt
and other fiscal crises, pernicious consequences of which cannot be delved on
here due to limitations of the space. It could be a rare case in which constitu-
tional changes themselves would produce major, permanent and socially very
significant effects, paving the way for crucially important definite healing of
our structurally unbalanced and functionally weak fiscal system.

One should not overestimate potential effects of constitutional changes, but

one should also not be too quick to write off their possible achievements. It
is true that most of these changes would remain without effect if they are
not accompanied by complementary adjustments, establishment of neces-
sary agencies and very demanding elaboration of accompanying legislation.
However, some constitutional changes, which are not outside the scope of the
possible and the workable, could produce enormous consequences that could

044
pave the way for the healing of our fiscal system, finally curbing almost ma-
lignant expansion of the state, which already jeopardizes our entire economy
and society as a whole. This paper is based on the belief that one such form
of constitutional adjustment has thus been identified.

REFERENCES
Begović, Boris and Boško Mijatović, eds, 2007. Korupcija u Srbiji pet godina kasnije
[Corruption in Serbia Five Years Later]. Belgrade: Centar za liberalno-demo-
kratske studije.
Blanchard, Olivier, 2006/1997. Macroeconomics. Upper Saddle River, N.J.: Prentice
Hall, Pearson.
Cerović, Božidar, 2012. Tranzicija – zamisli i ostvarenja [Transition – Idea and Reali-
zation]. Belgrade: Izdavački centar Ekonomskog fakulteta u Beogradu.
Fiskalni savet Republike Srbije [The Fiscal Council of the Republic of Serbia], 2012.
Predlog mera fiskalne konsolidacije 2012-2016. godine [Draft Measures of
Fiscal Consolidation 2012-2016]. Belgrade: Fiskalni savet Republike Srbije.
Kovačević, Mlađen, 2010. “Privatizacija u začaranim krugovima” [“Privatization in
Vicious Circles”]. In: Božo Drašković, ed., Kraj privatizacije – posledice po
ekonomski razvoj i nezaposlenost u Srbiji [The End of Privatization – Conse-
quences in Terms of Economic Development and Unemployment in Serbia].
Belgrade: Institut ekonomskih nauka.
Madžar, Ljubomir, 2011. Iskušenja ekonomske politike u Srbiji [The Challenges of Eco-
nomic Policy in Serbia]. Belgrade: Službeni glasnik.
Molnar, Aleksandar, 2012. “Solving the Problem of Democratic Legitimacy by Changing
the Constitution of Serbia,” in the present volume.
Pajvančić, Marijana, 2012. “Constitutional Issue,” in the present volume.
Pešikan, Radovan, 2012. “Liberali i antiliberali – stvarna ili lažna dilema?” [“Liberals
and Anti-Liberals – A Real or a Fake Dilemma?”]. In: Lj. Madžar and M. Jakšić,
eds, Globalna kriza i ekonomska nauka – Neoliberalizam i alternative [The
Global Crisis and the Science of Economy – Neoliberalism and Alternatives].
Belgrade: Akademija ekonomskih nauka u sastavu Naučnog društva ekono-
mista Srbije i časopis Ekonomske ideje i praksa Ekonomskog fakulteta u
Beogradu, pp. 235-251.
Sekulović, Marko, 2004. Ogledi o tranziciji [Essays on Transition]. Niš: Ekonomski
fakultet u Nišu.
Uvalić, Milica, 2012. Tranzicija u Srbiji – Ka boljoj budućnosti [Transition in Serbia –
Towards a Better Future]. Belgrade: Zavod za udžbenike.
Zec, Miodrag and Ognjen Radonjić, 2010. “Sistemski deficit i tranzicija u Srbiji” [“The
Systemic Deficit and Transition in Serbia”]. In: M. Arandarenko, A. Praščević
and S. Cvejić, eds, Ekonomsko-socijalna struktura Srbije – Učinak prve dece-
nije tranzicije [The Economic-Social Structure of Serbia – the Effects of the
First Decade of Transition]. Proceedings of the namesake conference held on
May 8, 2010 of the Scientific Society of Serbian Economists with the Academy
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Belgrade: Ekonomski fakultet u Beogradu, pp. 139-165.

045
DEJAN ILIĆ

DOES THE
CONSTITUTION NEED
TO BE CHANGED?
There is a political myth that says that the Democratic Opposition of Ser-
bia (DOS) chose its candidate for the President of the Federal Republic of
Yugoslavia for elections on September 24, 2000 on the basis of results of
a public opinion survey conducted in Serbia upon the commission and ac-
cording to instructions of US compnay “Penn Schoen Berland“ (PSB). Alleg-
edly, these results have clearly shown that Vojislav Koštunica has by far the
greatest chances among opposition contenders to win against his opponent,
presidential candidate Slobodan Milošević.1 This is not the only explana-
tory story of the change that happened on September 2000 elections which
disregards the facts. Another rumour is that in the summer of 2000, some
domestic marketing agencies surveying public opinion have been repeatedly
publishing fabricated surveys of voters’ preferences thus effectively influenc-
ing the shaping of electoral will of citizens of Serbia. Having received new
instructions from PSB advisors and having “screened“ the preferences of the
electorate, these agencies have considerably increased the prospects of op-
position candidates to win presidential and parliamentary election, blurring
the real strength of political parties and hightening turnout among oppo-
sition voters while lowering turnout among considerable number of voters

1) For a version of this myth see Tim Marshall, Shadowplay. Belgrade: Samizdat
B92, 2003.

047
of the ruling parties. Finally, the legend has it that upon the advice of the
samesake US consultant, who seems to have carefully studied the state of
affairs in the public opinion in Serbia in 1999 and 2000 and concluded that
citizens show great distrust to political parties as such, but would be willing
to accept and believe in political messages sent by new, non-party organi-
zations and movements, DOS leaders have decided to establish the “Otpor“
(“Resistance“) movement.
There is no reason to dwell here on truthfulness of these conspiracy nar-
ratives about political changes in Serbia in the early 2000s. Rather than
separating facts from fabrications which make up those conspiracy theories
– certainly a vain effort – let us examine the structure of these narratives to
which they owe a certain measure of persuasivenss. Primarily, one of the root
assumptions behind these stories is direct connection between attitudes and
moods of citizens and trajectories of political processes. It is a fundamen-
tally accurate insight – political parties may respond to needs or concerns of
citizens for whose support they compete. The impression of truthfulness of
aforementioned political myths results from this. However, it does not mean
that any “screening“ of those attitudes and moods has a capacity to affect
political processes. This reveals the point of possible manipulation: an inac-
curate representation of the will of the citizens may cause an outcome that
does not correspond to the real picture – for example, real proportion of politi-
cal strength of actors, number of supporters of certain political options, real
problems and their preferred solutions. There is no recipe to definitely dispel
doubts about whether a political process is a result of feedback between real
needs of citizens and activity of political parties or, on the contrary, it is mere
manipulation imposed by one particular political will.
Therefore I can understand the caution with which the survey “Why the
Constitution Must be Changed,“ which follows may be read by some ordinary
citizens and members of the political elite which are expected to act on its
results. The more so given that it is based on a survey of attitudes and moods
of citizens and members of the elite toward such a fundamental issue such
as the Constitution. Moreover, the findings of this research are presented
with one clear message: the Constitution of Serbia must be changed. It is
easy to turn things upside down and say: while the authors of the research
and the commentators of its findings maintain that the Constitution must be
changed because the citizens, who understand that the situation in which
political community finds itself requires change, demand it, it is neverthe-
less manipulation by which one particular interest wants to present itself as
a concern for the common good of all citizens of Serbia – for some reasons,
whatever they might be, the authors of the research want the Constitution
to be changed and subsequently justify this desire with findings of a public
opinion survey, although it is doubtful whether it shows the real state of
affairs. The suspicion about intentions of the authors and the commenta-

048
tors can be further aroused by the circumstances in which this publication
comes out – namely intensive negotiations to resolve the Kosovo issue. For
reaching a permanent agreement on Kosovo it is necessary to change the
Constitution.
That’s why I propose a reading of the research findings which would clear-
ly distance itself from the present circumstances. As rightly emphasized by
Jadranka Jelinčić,2 the answer to the constitutional question is not an issue
of the present moment and specific present benefits: when talking about the
Constitution, broader time horizon and political context has to be taken into
account. I therefore propose to juxtapose the findings of this research with
the findings of other surveys of citizens attitudes which have been conducted
in Serbia in the past dozen years and which have focused neither on the Con-
stitution nor on the Kosovo issue but which nevertheless have a bearing on
constitutional arrangements. Similar, but much more detailed, commentary
on the research findings has been made by Aleksandar Molnar in his study
Constitutional Chaos of the First Revolutionary Rotation in Serbia October 5,
2000 – July 27, 2012.3 Therefore there is no need to furnish detailed explana-
tions. It suffices to sketch the contours of one such reading.
The results of the research “Why the Constitution Must Be Changed“ single
out two social spheres within which things are not merely very bad, but there
is a clear awareness of the citizens that it is so. As a logical step to remedy
such state of affairs, comprehensive constitutional changes are required. One
sphere concerns definition and efficient protection of human rights and the
other concerns the economy i.e. inexistence of equal chances of participants
in the market economy. Namely, they concern human, economic and social
rights. All those who monitored the state of affairs in terms of the exercise
of these rights in the past dozen years will not be surprised by the findings
of this research. Since 1998 the Belgrade Center for Human Rights has been
publishing annual reports which continually testify to the weak protection of
human rights.4 In addition to these reports on the protection of human rights,
first in the Federal Republic of Yugoslavia, then in the State Union of Serbia
and Montenegro, and finally in the Republic of Serbia, two other pieces of
qualitative research are also of interest. They cover a time span of ten years
and were issued by the Belgrade-based Institute for Philosophy and Social
Theory and Niš-based Center for Empirical Cultural Studies of Southeast Eu-

2) See Jadranka Jelinčić, “The Constitutionalizing of Serbia,“ in the present volume.

3) Aleksandar Molnar, Ustavni haos prve revolucionarne rotacije u Srbiji 5. ok-
tobar 2000 – 27. jul 2012 [Constitutional Chaos of the First Revolutionary
Rotation in Serbia October 5, 2000 – July 27, 2012] (Belgrade: Open Society
Foundation and Fabrika knjiga, 2013).
4) All publications of the Belgrade Center for Human Rights regarding this topic
are available at http://www.bgcentar.org.rs/index.php?option=com_content
&view=category&layout=blog&id=62&Itemid=82 (accessed on April 8, 2013).

049
rope.5 An analysis of findings of these two pieces of research6 also shows
that citizens clearly sense that they are “unprotected legally and socially and
expect politics and politicians to make efforts to improve the situation in both
regards.“7 All these analyses show that inauspicious sitution is not exclusively
a consequence of inappropriate behavior of certain actors; it ensues from
fundamental institutional arrangements which permit systematic violation of
human rights and absence of their protection. Therefore it is not surprising
that findings of the research “Why the Constitution Must Be Changed“ show
that the citizens and the elite find constitutional changes necessary for im-
proving definition and protection of human rights.
The same goes for economy. The existence of market monopolies, efficient
elimination of small and medium-sized companies and collusion between po-
litical and economic power are described year after year in various publica-
tions (containinng data on the number of extinguished SMEs, on various com-
mittees in charge of preventing market monopolies, reports by government
and non-government agencies and organizations monitoring market economy
and fight against corruption etc).8 The fact is that despite disclosure of these
data and some court verdicts sanctioning individual cases, these phenomena
do not subside but on the contrary increase as the situation deteriorates year
after year. This suggests that there are systemic failures to prevent such prac-
tices. Ljubomir Madžar’s paper in this volume rightly claims that the cause of
the failure is attributable to an absence of the required constitutional provi-
sions as well as to inaapropriate behavior of crucial actors.9 However, the
scope of the problem suggests that more fundamental solutions need to be
reached at. Therefore there is a need to additionally constitutionally impose
certain rules of behavior in the sphere of the economy. One should reiterate
that this feeling of insecurity is not new and cannot be exclusively attributed
to the global financial crisis which erupted in 2008 and 2009. The research
conducted in the early 2000s has clearly shown that citizens are aware that

5) Cvetičanin, Predrag (ed.), Social and Cultural Capital in Serbia (Niš: Center
for Empirical Cultural Studies of Southeast Europe, 2012).
6) For an appropriate analysis of 2011 research see Ivana Spasić, Kultura na
delu. Društvena transformacija Srbije iz burdijeovske perspektive [Culture
at Work. Social Transformation of Serbia from Bourdieuian Perspective]
(Belgrade: Fabrika knjiga, 2013).
7) Đorđe Pavićević, Ivana Spasić, “Shvatanja politike” [“Understandings of Poli-
tics”], in: Zagorka Golubović, Ivana Spasić, Đorđe Pavićević (eds), Politika i
svakodnevni život [Politics and Everyday Life] (Belgrade: Institut za filozo-
fiju i društvenu teoriju, 2003), pp. 55-84, quote on p. 84.
8) Slightly strange interview with Žarko Milisavljević, the president of the
Association of Small and Medium-Sized Enterprises, published in weekly
Vreme on March 8, 2012, is in many ways illustrative for this segment of the
research. Available at http://www.vreme.com/cms/view.php?id=1039657
(accessed on April 8, 2013).
9) See Ljubomir Madžar, “The Limited Range of Constitutional Changes,“ in the
present volume.

050
“continuation of political disorder impedes clear definition of the common
good and the degree to which citizens can expect the delivery of public goods
which are not articulated in an arbitrary manner and do not serve merely
partial interests.“10
It could be said that protection of human rights, existence or inexistence of
equal chances to participate in market economy as well as mechanisms guar-
anteeing a minimum of social justice are relatively measureable categories.
Therefore referring to them has a quality of sufficient and practically self-
corroborating argument. However, there are some types of social and political
life which are less measureable but which additionally reinforce the view that
the Constitution must be changed. Talking about them, we return to topics
touched upon at the beginning of this text which reffered to the very function-
ing of the political system i.e. the political life of the community as such. If we
agree that a good life of a community requires that feedback exists between
on the one hand, the things which citizens articulate as their interests, needs
and problems expected to be politically solved and, on the other hand, the
activities of political parties and politicians acting in institutions supposed
to respond to these expectations and demands, then we can say that citizens
in Serbia perceive a gulf between these two things. It is confirmed not only
by results of this particular research. The existence of such a gulf between
citizens on the one hand and political parties and politicians on the other is
clearly evidenced by numerous pieces of research conducted throughout the
past decade. The findings of two aforementioned pieces of research conducted
by the Institution for Philosophy and Social Theory and the Center for Empiri-
cal Cultural Studies of Southeast Europe are telling in this regard.11
Namely, both pieces of research confirm that both at the beginning and at
the end of the first decade of the 21st century – as if nothing had happened
in the meantime, as if the 2006 Constitution that was expected to remedy it
had never been enacted – citizens experience politics and politicians as some-
thing they do not want to have anything to do with, while at the same time
they are aware that in everyday life they bear serious consequences of bad
results achieved by politicians and political parties. At the first sight, it seems
that citizens have confused and contradictory ideas. However, as rightly em-
phasized by Pavićević and Spasić, “it would be wrong to attribute this merely
to political ignorance of citizens.“ On the contrary: “The confused ideas are
attributable to inexistence of the basic consensus and lack of communication
between different segments of society: the non-public (private and everyday)
and the public one (media, NGOs, intelectuals, politicians). The way in which
reality is politicly articulated within these two segments of society has failed
to establish a visible mutual (two-way) connection. They largely act autono-

10) Ibid.
11) See more in Spasić, Culture at Work.

051
mously rather than as a networked social whole.“12 If we wanted to describe
even more clearly what lies behind the apparent confusion of ideas, we could
adduce research analysis produced in 2011 by the Center for Empirical Cultural
Studies of Southeast Europe.13 This analysis also testifies that citizens show a
clear distance towards politics and politicians, to the point that citizens con-
sider politicians to be some other species, significantly different from them,
“the ordinary people.“ The difference is mostly in the fact that politicians stick
to deformed moral norms and are guided by goals which are utterly selfish
and the accomplishment of which harms other members of the community. On
the other hand, those same “ordinary“ citizens expect precisely from the state
to solve all the problems which they face day after day and to protect them
against injustice they experience daily. The paradox is that citizens actually
expect protection from those – politicians i.e. those who run the state – whom
they have already labelled as persons unworthy of their confidence. However,
it should be reiterated that this confusion is only apparent. In fact, citizens,
very rationally, expect that the problems be solved within institutions which
exist in the structure of the political community precisely in order to solve
them. Therefore, it is not confused ideas which are the problem, but the fact
that citzens do no longer see the channels through which they can influence
the work of political institutions. They see themselves caught in a society in
the molding and governing of which they can no longer participate, because
they have been pushed out of the public field by political parties and politi-
cians who no longer represent their interests. The citizens thus no longer
perceive the community they belong to as theirs. Eventually, we have obtained
a disfunctional and in political sense a fragmented political system which no
longer fulfills its purpose.
The results of the research “Why the Constitution Must be Changed“ offer
two answers to this dilemma, one of which is apparent, while the other must
be derived from the solution to the problem that has been perceived. Firstly,
it shows that the gulf between the citizens and the elite is not so deep as it
seems to citizens. There is a high degree of agreement between the two sides
in terms of detection and description of basic problems. In term of our topic,
the most important thing is that this agreement is also manifest in terms of
the need to change the existing Constitution. The gulf reappears only in the
second step, namely due to the failure of the elite to act on the attitudes and
moods which it shares with citizens. Relatedly, the solution is also self-evident:
trust between the citizens and the elite can be rebuilt within the proces in
which both exchange opinions on what is wrong with the political commu-
nity they belong to and how the community in which they would like to live
should look like. It is not only that a wide-ranging discussion on these topics

12) Pavićević and Spasić, “Understandings of Politics “, p. 55.

13) See Spasić, Culture at Work. Part II: “Classifications, Moral and Politics.“

052
could vouchsafe the legitimacy of agreed constitutional solutions; the very
discussion would reestablish the severed links between citizens and those
who are supposed to represent them. It would be the first step in building of
a functional political community.
Finally, one should emphasize what this reserach has yielded what previous
pieces of research have not shown. Namely, if I have previously stressed the
fit between the results of this research with the results of previous conducted
public opinion surveys in order to emphasize reliability of these new results,
I would now like to cast a short glance at the data provided by this research
regarding collective identity of citizens of Serbia. If previously I have talked
about a merely apparent confusion in terms of citizens’ expectations from the
state and the politicians, when identity issues are concerned this research
shows that there is a real confusion which is largely generated by consti-
tutional solutions themselves, along with specific laws which regulate state
symbols of Serbia. In his commentary, referring to the Constitutional Preamble
and misunderstanding of the difference between the ethnic and the national,
Vladimir Ilić has sketched well the main points of this identity-related confu-
sion.14 I would only add that the discussion about changing the Constitution
and Constitutional amendment itself would be an efficient means to do away
with this confusion. The mere inclusion of citizens of Serbia in the discussion
and the decision-making process regarding different foundation of the politi-
cal community in which they live would also shape the national identity the
inclusive capacity of which should be much greater than presently envised by
existing institutional identity solutions (at this point one should take a look at
various documents, from the existing Constitution to, for example, the adopted
Education Strategy,15 to see that political and intelectual elite encounter prob-
lems whenever they are forced to grapple with identity issues; the impres-
sion is often left that exclusionary patterns of ethnic identity instituteonalized
through various official documents are more a result of ignorance of their
authors than of their truly bad intensions). Finally, such all-encompassing
(both in terms of participants and in terms of topics) discussion would lay the
groundwork for building what we might call constitutional patriotism. Such
constitutional patriotism would not provide a basis for creating divisions in
Serbia between citizens of the first and the second order in terms of ethnic
origin, religion, social status, ideologic orientation as is the case with existing
constitutional and legal arrangements. On the contrary, it would be a strong
means to achieve cohesion and instigate mutual solidarity of all citizens of
Serbia, regardless of their possible identity-related differences.

14) See Vladimir Ilić, “A New Constitution for Serbia,“ in the present volume.
15) See more in: Dejan Ilić, “Democracy for Education“, Reč no. 83, 2013,
pp. 201-215; accessible at http://www.fabrikaknjiga.co.rs/wp-content/
uploads/2013/03/14.-DEMOKRATIJA-ZA-OBRAZOVANJE.pdf (accessed on
April 8, 2013).

053
OPEN SOCIETY FOUNDATION
IPSOS STRATEGIC MARKETING

WHY MUST THE

CONSTITUTION OF
SERBIA BE CHANGED?
METHODOLOGY
THE SAMPLE AND THE DATA COLLECTION METHOD

A. The Sample
The present research includes two target groups:
1) citizens of Serbia aged 18+, and
2) The elite - political, civil society and intellectual elite

1) Citizens of Serbia aged 18+

Sampling frame: 18+ population of Serbia
Sample size: 1056 respondents
representative three-stage stratified random sample
First stage unit: Polling stations territory
Type of sample: Second stage unit: Households (SRSWoR - randomly)
Third stage unit: The respondents within households
(Kish tables)

67 municipalities in Serbia, 127 local communities, urban,

Polling locations:
suburban and rural environments
Stratification: By gender, age and region
±1.45% for phenomenon with 5% prevalence
±2.86% for phenomenon with 25% prevalence
Error:
±3.31% for phenomenon with 50% prevalence (marginal
error)

057
2) The elite

The number of interviews conducted

Political elite Social elite Intellectual elite TOTAL

N0. of N0. of No. of N0. of No. N0. of

Re-
or- res- or- res- of or- res- Organ-
spond-
gani- pon- gani- pon- ganiza- pon- ization
ents
zations dents zations dents tions dents
Political par-
20 28 20 28
ties
National
councils of 7 7 7 7
minorities
Expert/ inde-
5 5 5 5
pend. bodies

CSOs 23 23 23 23

Religious
5 5 5 5
communit.

Media 15 15 15 15

University 10 10 10 10

A&SAcademies 1 1 1 1

Total 32 40 28 28 26 26 86 94

2.1. The target group includes three relevant groups:

a) Political elite: 1) Party political elite (political parties); 2) Elites of na-
tional minorities (national councils of national minorities); 3) Expert political
elite (expert and independent state bodies)
b) Social elite: civil society and religious communities and associations
c) Intellectual elite (generation and distribution of ideas): media, universi-
ties and academies of arts and sciences

Selection of participants
In line with the research plan, the respondents included the elected leaders
of relevant organizations/groups i.e. the opinion makers:
a) Presidents and Vice-Presidents (of political parties, national minority
councils and expert political elites)
b) NGO directors and heads of religious communities
c) Directors and editors-in-chief of media; universities’ rectors and presi-
dents of academies of arts and sciences and prominent university professors
– societally engaged public figures

058
In case the planned interviewee was not available to talk, they were replaced
by a different participant, closest to them in terms of hierarchy.
A total of 100 organizations and 110 respondents were envisaged. The
interviews were carried out in 86 organizations and involved 94 participants.
Interviews were conducted with one respondent from each organization,
with the exception of political parties, where the number of respondents var-
ied between 1 and 3 (see Note).

NOTE: Data analysis took into account the number of respondents from dif-
ferent political parties. Since due to unavailability of certain respondents from
political parties the number of respondents varied on account of their avail-
ability and not in line with the research plan, the findings for the political elite
imply the number of respondents that had been harmonized employing a sta-
tistical procedure (the procedure of weighted average). As a result, participa-
tion of all political parties in the overall result is balanced, and each individual
political party (regardless of the number of respondents) participates in the
total result equally as all other organizations.

B. The Data Collection Method

1. Citizens of Serbia
The data were collected in individual interviews, face to face, in respondents’
households and using a fully structured questionnaire. The citizens’ questionnaire
corresponded in content to that of the elite, but was significantly shorter (dura-
tion 30 minutes) and adapted to an average (non-professional) citizen of Serbia.
The poll was conducted from October 15 to October 23, 2011.

2. The elite
An invitation to organizations and individuals to participate in the poll was
distributed by e-mail. The cover letter informed the participants about the
research objectives and data collection methods. Respondents were informed
that research results would be presented only at the group level and that
project implementers would not disclose the stated opinions and attitudes
of participants at the individual level. Participants were informed that Open
Society Foundation, Serbia planned a public presentation of research findings
and a public debate on this topic, allowing each participant the opportunity
to comment on the results and publicly present his/her opinions and views as
regards the Constitution, if he/she wants to.
Participants took part in individual “face to face” interviews with semi-
structured questionnaire, lasting approximately 60 minutes. The interview was
conducted at the time and place most convenient to the participant.

The questionnaire designed for the elite consisted of 4 sections: 1) Attitudes

towards the Constitution (general assessment, values and legacy); 2) Atti-

059
tudes towards the procedure of adopting the 2006 Constitution; 3) Attitudes
toward changing the Constitution; 4) Attitudes towards specific provisions of
the Constitution (Preamble, statehood, political system, territorial organiza-
tion, human rights, economic system).
The questionnaire was of the semi-structured type - most questions were
provided with possible answers and each answer could be supplemented with
additional comments or explanations of the respondent.
The interviews were conducted from January 10, 2012 to February 01, 2012.

060
MAIN FINDINGS
A) ATTITUDE TOWARDS THE CONSTITUTION AS A WHOLE: GENERAL
ASSESSMENT, LEGACIES AND SOCIAL VALUES
The attitudes of representatives of the elite towards the existing Constitution
as a whole point out to two general problems: the problems related to the very
contents of the Constitution and the problems of implementation of constitu-
tional provisions in society i.e. abiding by the Constitution.
1. In terms of the Constitution’s contents, representatives of the elite spec-
ify four key problems:
a) The Constitution’s incompleteness (the values that the constitution
maker has omitted to include),
b) The ambiguity in wording of provisions (possibility of ambivalent in-
terpretation),
c) The conflicting of certain provisions (one provision is annulled by an-
other provision) and
d) The lack of firmer guarantees for values upheld.

2. In terms of implementation of constitutional provisions in society, the

representatives of the elite emphasize two points:
a) The Constitution’s declarative nature (the disregard of the Constitution
and the violation of the Constitution in practice)
b) The relationship between the Constitution and laws (the lack of neces-
sary laws and incongruence of laws with the Constitution).

– On a scale from 1 to 5, with 1 being the lowest and 5 being the highest, the
Constitution received an average mark of 2.8.
– Most representatives of the elite think that the enactment of the Consti-

061
tution in 2006 introduced few real changes in Serbia (25% think that nothing
has changed, 59% that only some things have changed and only 14% think
that a lot has changed).
– Most representatives of the elite, as much as 72%, concur that the Con-
stitution of Serbia contains provisions that will prove to be lasting legacies
of Serbia in the political and legal sense, but most of them specify only one
such legacy – human rights.
– Most representatives of the elite, namely 64%, think that there are at
least some social values that have been reinforced with the enactment of the
Constitution. However, as was the case with constitutional legacies, values
which the respondents specify are few and various without universal agree-
ment which these are (except to a certain extent human rights, which are
specified by most respondents as values that have been strengthened).
– Most representatives of the elite think that the constitution maker has
omitted to additionally strengthen at least some important social values; the
respondents are much more verbose when listing deficiencies than when list-
ing constitutional legacies and values strengthened by the Constitution.
– Even though most representatives of the elite maintain that there are at
least some values that have been additionally reinforced with the enactment of
the Constitution, only 12% maintain that values contained in the Constitution have
(at least to a certain extent) been implemented in society and only 38% think that
the Constitution (at least to a certain extent) provides guarantees to those values.
– Most representatives of the elite, namely 78%, think that the catalogue
of values (enumerated in Article 1) should be expanded to include sustainable
development and inclusion.

GENERAL ASSESSMENT OF THE EXISTING CONSTITUTION

If the Constitution were to be marked on a scale from 1 to 5, as in school - with
1 being the lowest and 5 the highest, according to the opinion of the elite, it
would obtain a school mark of 2.8.
The Constitution received the best mark from the political elite (the average
mark of 3.0), secondly, from the intellectual elite (the average mark of 2.8) and
the worst mark from representatives of the social elite (the average mark of 2.6).

Elite: Marking the Constitution on a scale from 1 to 5?

   
  1HPRæHGDRFHQL
Cannot mark


 
 



 
 

 
 

 
 
 

 
  
062
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite
 The 1990 Constitution received only slightly worse marks, the average be-
ing 2.3. The 1990 Constitution has also received best marks from the political
elite (the average mark of 2.5).

LEGACIES
Has something changed in Serbia with the enactment of the 2006 Constitu-
tion?
Most representatives of the elite maintain that the enactment of the 2006
Constitution has brought few real changes to Serbia. More than one half of the
respondents, namely 59%, assess that only some things have changed with the
passing of the Constitution and only 14% think that a lot has changed, while
every fourth respondent thinks that nothing has changed.

Elite: Has the enactment of 2006 Constitution broght changes to Serbia?

  
 Cannot assess
1HPRæHGDRFHQL

 
  
  No, nothing has changed
1HQLäWDVHQLMHSURPHQLOR
 
 
 
  Yes, some things have changed
'DSRQHäWRVHSURPHQLOR
  
 
   Yes, a lot has changed
'DPQRJRVHSURPHQLOR

7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

In terms of the changes brought about by the Constitution, most respond-

ents discuss changes introduced with respect to the previous Constitution
rather than effects which the Constitution has produced on the life in Serbia.
The respondents often emphasize that the Constitution is not fully observed
and that the effects of constitutional changes in real life are far fewer than
they would have been if the Constitution had been observed.
Not only that most respondents maintain that the Constitution has brought
about few changes, but the changes they specify tend to be equally negative
as well as positive, and they most often refer to the Preamble to the Constitu-
tion and human rights (prevention of discrimination).
While human rights, with rare exceptions, are specified as the positive
change, the Preamble is often said to have brought about negative changes,
preventing the resolving of relations with Kosovo; in some rare instances, the
Preamble is specified as a positive change because it has given boost to the
fight for preservation of territorial integrity of Serbia.

063
Does the Constitution contain provisions that will prove to be lasting lega-
cies of Serbia?
Most representatives of the elite, namely 72%, concur that the Constitution
of Serbia contains provisions that will prove to be Serbia’s lasting legacies in
the political and legal sense, but in fact most of them specify only one such
legacy – human rights.

Elite: Does the Constitution of Serbia contain provisions that will prove to
be lasting legacies?
  XSUDYQRPLSROLWLÿNRPVPLVOX"
 Does not know
1H]QD
 
 
 


 1H
No

  




'D
Yes
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

Apart from human rights, the lasting legacies of the Constitution the re-
spondents specify include: the democratic political system; party pluralism;
separation of powers; the economic system, private property and restitution;
territorial integrity (the Preamble); and defining Serbia as the state of the
Serbian people and other citizens living in it.
Apart from human rights, mentioned by the greatest number of respond-
ents, other legacies are mentioned by a considerably fewer number of re-
spondents (for example, only ten respondents mentioned the democratic po-
litical system, some aspects of the economic system and the Preamble, while
only four mentioned the definition of Serbia as the state of the Serbian people
and other citizens living in it).
It is obvious that, with the exception of human rights, there is no general
agreement among the elite about lasting legacies of the present Constitu-
tion. The comments concerning human rights provided subsequently by the
respondents make it clear that many think that this potential legacy also re-
quires certain corrections and amendments.

VALUES
Whether some social values have been strengthened with the enactment of
the Constitution; to what extent are these values implemented in Serbian

064
society; to what extent does the Constitution provide guarantees to those
values; whether the constitution maker has made some omissions?

Have some social values been strengthened with the enactment of the Con-
stitution?
Most representatives of the elite, namely 64%, think that there are at least
some social values that have been strengthened by the enactment of the Con-
stitution. However, as was the case with constitutional legacies, values which
the respondents specify are few and various without universal agreement
which these are (except to a certain extent human rights, which are specified
by most respondents as values that have been strengthened).

Elite: Are there any social values that have been strengthened in Serbia
with the enactment of the Constitution?
  GRQRäHQMHP8VWDYD"
  1H]QD
Does not know

  



1H
No

   



'D
Yes
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

Most respondents specify positive values but there are respondents (6

of them) who maintain that the Constitution actually strengthens negative
values. Some respondents strongly emphasize that the values are upheld only
declaratively but not in practice because the Constitution is not observed.
The social values most respondents said were strengthened with the prom-
ulgation of the Constitution, at least declaratively if not in practice, are the
following three: human rights (especially minority rights, the freedom of reli-
gion and gender equality), democratic political system, and, somewhat rarer,
market economy. A few respondents, representatives of political parties, em-
phasized the separation of powers (into the executive, the legislative and the
judicial branch of government). Less frequently European values were also
cited and a couple of respondents mentioned decentralization and freedom
of information.
The respondents who thought that the Constitution actually strengthened
some negative values specified these as nationalism, traditionalism, deceit of
citizens, partocracy and negative influence of the Preamble.

065
 Has the constitution maker omitted to additionally reinforce some important
social values?
Most representatives of the elite think that the constitution maker has
omitted to additionally reinforce at least some important social values. Con-
spicuously, the respondents were much more verbose when listing these omis-
sions than when enumerating positive legacies of the Constitution and the
values embodied in it.

Elite: Are there any important social values wich the Constitution maker
has omitted to additionally reinforce?
  SURSXVWLRGDGRGDWQRXÿYUVWL"
 Does not know
1H]QD

  





1H
No

  





'D
Yes
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

Speaking about the values which the constitution maker has omitted to
strengthen, the respondents once again emphasized the general problem of
the Constitution’s declarative nature and its general failure to provide sufficient
guarantees to the values enshrined in it.
The values specified by the respondents as the ones which the constitution
maker has omitted to reinforce are again some human rights such as the right
to privacy, the equality of religious communities, minority rights, clear mention
of other than national minorities (especially sexual minorities), children’s rights,
family rights and equality of sexes.
Frequently, the respondents said that by defining Serbia as the state of the
Serbian people and other citizens living in it, the values such as civic character
of the state, equality and anti-discrimination have been contested rather than
affirmed.
Other values which the constitution maker has omitted to strengthen, men-
tioned by the respondents, include independence of the judiciary, decentrali-
zation, the separation of powers, alignment of national legislation with acquis
communautaire of the European Union and the country’s commitment to the
goal of European Union membership.

066
To what extent are values upheld by the Constitution implemented in Ser-
bian society and to what extent does the Constitution provide guarantees
for those values?
Even though most respondents think that there are at least some values
that have been strengthened by the Constitution, only 12% think that the val-
ues upheld under the Constitution are (at least mostly) implemented in society
and only 38% that the Constitution (at least mostly) provides guarantees to
these values. A great number of respondents underlines that the Constitution
has a declarative nature and is not observed in practice.

Elite: Have the values upheld in the Constitution been implemented

in our society?
  

  1HPRæHGDRFHQL
Does not know
  

 8SRWSXQRVWL
Fully

 
 
   8JODYQRPGD
Mostly yes
 


 ,GDLQH
 Both yes and no



   Mostly no
8JODYQRPQH
 
    8RS>WHQH
Not at all
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

Explaining their attitude that the values affirmed by the Constitution are not
implemented in practice, respondents give numerous examples. The examples
of values that have not been implemented in practice again most often concern
human rights, which are also emphasized as the lasting legacies of the Constitu-
tion, the values that have been strengthened by the Constitution as well as the
values that the constitution maker has omitted to additionally reinforce.
The values that have not been implemented include minority rights: the
rights of national minorities, the rights of sexual minorities, gender equal-
ity and anti-discrimination. Other values that have not been implemented
in practice are the separation of powers, the autonomy of the Province of
Vojvodina (the budget of the Province of Vojvodina), freedom of information
i.e. media freedom (incongruence with the freedom of information guaranteed
under the Constitution), the democratic political system (breaches have to do
with overbearing power of political parties – the partocratic state), independ-
ence of the judiciary (reform of the judiciary), the issue of “free“ vs. “impera-
tive“ mandates of MPs, definition of the state as secular.

067
Elite: To what extent does the Constitution
itself guarantee these values?

  
 1HPRæHGDRFHQL
Does not know



 8SRWSXQRVWL
Fully
 
 

  8JODYQRPGD
Mostly yes
 

  Both yes and no
,GDLQH
  
 
Mostly no
8JODYQRPQH

      
 Not at all
8RSäWHQH
Total
7RWDO Political elite
3ROLWLÿNDHOLWD Social elite Intellectual elite
'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD

The very fact that the values upheld under the Constitution are breached in
practice, according to these respondents, clearly testifies that the Constitution
does not provide sufficient guarantees to these values.
According to those respondents that emphasize that the Constitution is
merely declarative, it is precisely this lack of guarantees that makes the Con-
stitution declarative (“a mere piece of paper“).
In their explanations, the respondents say that the Constitution is often
vague and can be interpreted in various ways, and that the laws are often not
harmonized with the Constitution.
The respondents also say that clearly defined sanctions for breaching the
Constitution are lacking. As examples, they specify the system of judicial pro-
tection of human rights i.e. their protection before the Constitutional Court,
the work of which is deficient and the functioning of which should be consti-
tutionally redrafted.
On the other hand, some respondents (although a very small number)
think that the problem of guarantees is not a constitutional issue, since the
Constitution should only provide a framework (the foundation). Instead, it is
the legislation which should provide elaborate guarantees in accordance with
the Constitution, but which is presently lacking.

Should the catalogue of values be expanded to include sustainable develop-

ment and social inclusion?
Most respondents, namely 78%, think that the catalogue of values (pro-
vided in Article 1 of the Constitution) should be expanded so as to include
sustainable development and inclusion.
The respondents who think that inclusion and sustainable development
should not be added to the existing catalogue of values maintain that a list of
general values should be well defined so as to enable that all individual values,

068
including the two aforementioned, are subsumed in it, but that enumeration
of all individual values in the Constitution is unnecessary.
Elite: Should the list of values be expanded to include sustainable
development and social inclusion?
 
  Does not know
1H]QD
  




1H
No
  




'D
Yes
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

Some respondents think that inclusion should be added but not sustain-
able development, because it is not a sufficiently clear term.

B. ATTITUDES TOWARDS THE PROCEDURE OF ADOPTION

OF THE 2006 CONSTITUTION
– As much as 54% of citizens and 59% of the elite think that a lack of public
debate before the adoption of the 2006 Constitution and the fact that the
referendum for adoption of the Constitution lasted two rather than one
day represent serious breaches of procedure, undermining the will of the
people.
– Five years after the referendum (in October 2011), only 39% of citizens
said that they would vote again for adoption of the Constitution.

Before the Constitution was adopted, there was no public debate about its
draft. The referendum for adoption of the Constitution of Serbia lasted two
days instead of one as had been envisaged by the law. What is your opinion
about such a procedure?
The citizens and the elite concur in their assessments of the procedure of
adoption of the 2006 Constitution: 54% of citizens and 59% of the elite think
that the lack of public debate before the adoption of the Constitution and the
fact that the referendum lasted two days rather than one, represent serious
breaches of procedure, undermining the will of the people.
However, among the ranks of the elite there are significant differences
in attitudes. While smaller part of the political elite, 38%, think that these
breaches of procedure undermine the will of the people, this view is ex-

069
pressed by the majority of the social elite, as much as 64%, and by the
overwhelming majority of the intellectual elite, as much as 81%.

Before Constitution
J Mwas enacted,
M there
M was M no public
S debateM J on its draft.
What do you think about this procedure?
.DNYRMHYDäHPLäOMHQMHRWDNYRPSRVWXSNX"
     Does not know
1H]QDP
   
   %LWQRMHGDMHUHIHUHQGXP
What is important is that
 XVSHRDVYDNRNRRVSRUDYD
referendum has succeeded
  WDNRLVND]DQXYROMXQDURGD
 and anyone disputing the
  MH]ORQDPHUDQ
wil of the people expressed
 in this way is malevolent
  7RLQLMHQLNDNYD
 That is practically no breach
SRYUHGDSURFHGXUH
  of procedure
   
 It7RMHSRYUHGDSURFHGXUH
is a breach of procedure which
  however does not
NRMDLSDNQHGRYRGL
undermine the will of the people
XSLWDQMHYROMXQDURGD

It7RMHR]ELOMQDSRYUHGD
is a serious breach of
SURFHGXUHNRMDGRYRGL
procedure which undermines
the will of the people
XSLWDQMHYROMXQDURGD
Citizens
*UDĀDQL Elite
(OLWD Political elite
3ROLWLÿNDHOLWD Social elite Intellectual elite
'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD

The referendum on adoption of Serbian Constitution lasted two days in-

stead of one as envisaged by the procedure. What is your opinion on this?
.DNYRMHYDäHPLäOMHQMHRWDNYRPSRVWXSNX"
     Does
1H]QDP
not know
  
    What is important is that
%LWQRMHGDMHUHIHUHQGXP
 referendum has succeeded
XVSHRDVYDNRNRRVSRUDYD
  and  disputing the
anyone
WDNRLVND]DQXYROMXQDURGD
 wil of the people expressed
MH]ORQDPHUDQ

  in this way is malevolent
   7RLQLMHQLNDNYD
That is practically no breach
SRYUHGDSURFHGXUH
  
of procedure
 
 It7RMHSRYUHGDSURFHGXUH
is a breach of procedure
  
 which however does not
NRMDLSDNQHGRYRGL
  undermine the will of the people
XSLWDQMHYROMXQDURGD
 
 is a serious breach of
  It7RMHR]ELOMQDSRYUHGD
 
SURFHGXUHNRMDGRYRGL
procedure which undermines
XSLWDQMHYROMXQDURGD
the will of the people
*UDĀDQL
Citizens (OLWD
Elite 3ROLWLÿNDHOLWD
Political elite Social elite Intellectual elite
'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD

Undermining the belief of the larger part of the political elite that the
adoption of the 2006 Constitution in the referendum meant that the will
of the people had been respected, the opinion poll in October 2011 (five
years after the referendum) showed that only 39% of citizens would once
again vote for the adoption of the Constitution.

Why was the Constitution enacted with such speed?

The representatives of the elite do not agree about the reasons that
led to such unusual speed of the process of enactment of the Constitution.
However, most frequently mentioned are some of the following four rea-
sons: introduction of the Preamble i.e. political circumstances regarding
the issue of Kosovo (the most frequently given reason); the agreement

070
between the Democratic Party and the Democratic Party of Serbia that the
term in office of Prime Minister Vojislav Koštunica should end with prom-
ulgation of the new Constitution, while, in turn, he would agree to call
early elections; final distancing from the regime of Slobodan Milošević;
the pressure by the EU and the international community (the least fre-
quently mentioned reason).

Citizens: If the referendum on the same Constitution were today, what

would you do?
 1H]QDP
Does not know


I would not turm out to

 1HELKXRSäWHL]DäDRODQDUHIHUHQGXP
vote in the referendum

I would turn out to vote in the
 ,]DäDRODELKQDUHIHUHQGXPDOLELKSRQLäWLRODOLVWLý
referendum but would make
 the ballot invalid

I would vote against adoption
*ODVDRODELKSURWLYXVYDMDQMD8VWDYD
of the Constitution


I would vote for adoption
*ODVDRODELK]DXVYDMDQMH8VWDYD
of the Constitution
Citizens
*UDĀDQL

C) ATTITUDE TOWARDS CONSTITUTIONAL REFORM

– Only 10% of citizens and 4% of the elite think that the Constitution should
not be changed.
– Most representatives of the elite, namely 83%, said that their parties/
organizations would advocate constitutional changes. The representatives of
the political elite express this attitude somewhat more than representatives of
other elite groups (91%), but most respondents who belong to political parties
said they had already started advocating constitutional changes.
– Most representatives of the elite, namely 60%, think that it would be
beneficial if the process of changing the Constitution were to begin as early
as possible after parliamentary elections.
– Most representatives of the elite, namely 88%, think that the civil sector
should play an autonomous and active role in initiating constitutional changes.
– The representatives of the elite most often describe the role of civil so-
ciety as important in terms of:
– organizing public debates
– articulating arguments from areas of their expertise and proposing
solutions encouraging citizens to become actively included in the de-
bate on changing the Constitution
– advisory function.

071
 – In the opinion of media representatives, the proper role of media in initiating
constitutional changes is to open a space for public confrontation of different
opinions on the subject.
– Most representatives of the elite, namely 67%, think that constitutional
changes should be made in the manner envisaged by the existing Constitution,
while 45% of citizens think that constitutional changes should be carried out
by a special assembly elected by the people.
– Almost all representatives of the elite, namely 91%, and slightly less than
one half of citizens, namely 43%, think that without public debate, redrafting
the Constitution would not be serious.
– Most representatives of the elite, namely 57%, think that constitutional
changes should be discussed in election campaigns of political parties.
– Almost one half of representatives of political parties, namely 48%, said
they would discuss the Constitution in their election campaigns.

In your opinion, what should be done regarding the Constitution?

Only 10% of citizens and 4% of the elite think that the Constitution should
not be changed.
Most representatives of the elite (52%) think that the public debate should
be opened as soon as possible and once it is over, one should see whether the
Constitution should be changed. However, the comments of two thirds of the
respondents who chose this answer make it clear that they advocate chang-
ing the Constitution in a manner determined by the preceding public debate.
This explanation makes it clear that the actual number of representatives of
the elite who advocate the changing of the Constitution is significantly higher
(almost 70%).

What in your opinion should be done regarding the Constitution?

   
  1H]QDP
Does not know
  
  
 No  should be made
changes
  1HWUHEDPHQMDWLQLäWD
   
  Public 
debate should be
7UHED]DSRÿHWLMDYQXUDVSUDYX
 initiated and when it is over
LSRQMHQRPRNRQÿDQMXYLGHWL
one 
should see whether
 WUHEDOLELORäWDPHQMDWL
 changing  is necessary
     7UHEDSURPHQLWLVDPRRQH
Only deficient provisions
  RGUHGEHNRMHQHYDOMDMX
should be
 amended and miss-
LXQHWLQRYHNRMHQHGRVWDMX
ing ones introduced
     7UHEDGRQHWLnew Constitution
Completely
should be enacted
SRWSXQRQRYXVWDY
Citizens
*UDĀDQL Elite
(OLWD Political elite
3ROLWLÿNDHOLWD Social elite Intellectual elite
'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD

Most citizens believe that the Constitution should be changed (20% that a
completely new Constitution should be enacted and 44% that deficient provi-

072
sions should be amended and missing provisions introduced) and only 16%
hold an opinion that public debate should be initiated and once it is over, it
should be determined if there should be any changes to the Constitution at all.

According to a public opinion poll conducted in October 2011, most citizens,

namely 64%, think that it is necessary to at least partially amend the Consti-
tution, if not to enact a completely new one. Do you think that the attitude
of these citizens should be acknowledged?
Most representatives of the elite (89%) think that the attitude of citizens
about amending or changing the Constitution should be acknowledged. With-
in the political elite, 9% of respondents said that the attitude of citizens on this
issue should not be acknowledged. The reason, they say, is that a single public
opinion poll does not suffice and that citizens are no experts on the subject.

Elite: According to a public opinion poll conducted in October, most citi-

zens, namely 64%, think that the Constitution should at least partially be
amended or a completely new one enacted. Do you think that the opinion
of these citizens should be acknowledged?
 0LVOLWHOLGDWUHEDXYDæLWLVWDYWLKJUDĀDQD"
   1H]QD
Does not know
   





1H
No
   





'D
Yes
Total
7 W O Political elite
3ROLWLÿND HOLWD Social elite
'UXäWYHQD HOLWD Intellectual elite
,QWHOHNWXDOQD HOLWD

Will your political party/organization advocate constitutional changes?

Most representatives of the elite (83%) said that their parties/organiza-
tions would advocate constitutional changes. The representatives of politi-
cal elite expressed this attitude somewhat more than others (91%), but most
respondents belonging to political parties said they had already started
advocating constitutional changes. The representatives of intellectual elite
advocate constitutional changes within their respective institutions/media
houses to a lesser degree (69%). As their main reason, the representatives of
University, for example, said that the University ought to keep a distance from
politics, while media representatives mostly said their job was to give media
space to conflicting views on the issue, without taking a stance either for or
against constitutional changes.

073
Elite: Wil your political party/organization advocate changes to
the Constitution?

  1H]QD
Does not know
  
 
  
 
 

1H
No
 



'D
Yes
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

Will you personally do something to help the process of amending or chang-

ing the Constitution?
When the focus of commitment is shifted from an organization to the
level of personal engagement, 79% of respondents say they are ready to
become engaged in the process of constitutional reform. The difference
between intended engagement within respective organizations (86%) and
personal engagement (79%) is most marked among representatives of the
social elite who are somewhat less ready to become personally engaged in
initiating constitutional changes, because they feel that they personally do
not have sufficient expertise on the subject. Unlike the social elite, media
representatives are somewhat more ready to become personally engaged
in initiating constitutional reform by writing texts or participating in public
debates.

Elite: Will you personally do something to amend the Constitution

partially or fully?

 Does not know
1H]QD

  
 
  
 
 
 No
1H

  

Yes
'D
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

074
Would it be beneficial for Serbia if constitutional changes were initiated
shortly after parliamentary elections, following the setting up of parliamen-
tary majority and government?
A majority of representatives of the elite (60%) maintain that it would be
beneficial if constitutional changes were to be initiated shortly after parlia-
mentary elections, while 14% think that it depends on the nature of parlia-
mentary majority to be set up.
The representatives of social elite slightly more than other elite groups
(68%) think that constitutional changes should be initiated shortly after par-
liamentary elections.
Every fifth representative of the political elite (21%) thinks that the ben-
efits of initiating constitutional changes (the direction of these changes, once
initiated) will depend on the character of prospective parliamentary majority.

Elite: Would it be beneficial for Serbia if a possible Constitution

amendment process were to begin shortly after parliamentary elections
following the setting up of parliamentary majority and government?

    Does not know

1H]QD

    Depends on what

 kind of parliamentary
=DYLVLRGWRJDNDNYDýH
    majority will be
ELWLVNXSäWLQVNDYHýLQD
  constituted
 
No, it would certainly
1HVYDNDNRELMRMäWHWLOR
 be harmful


  It is completely
 3RWSXQRMHVYHMHGQR
irrelevant

Yes, it would certainly

'DVYDNDNRELMRMNRULVWLOR
be beneficial
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

How do you see the role of the civil sector (NGOs, professional associations, trade
unions, universities...) in initiating constitutional reform: in your opinion, what
kind of role should it play?
Most representatives of the elite (88%) think that the civil sector should have
an autonomous and active role in initiating constitutional changes. Only some
members of the political elite (10%) expressed an opinion that the civil sector
should not interfere in the process of constitutional reform, while representatives
of other elite groups did not express such a view.
The representatives of the elite most often describe the role of the civil
sector as significant in terms of:
– organizing public debates
– articulating arguments from their respective fields of expertise and pro-
posing solutions

075
 – encouraging citizens to become actively included in the debate on con-
stitutional reform
– advisory function.

Elite: How do you see the role of civil sector (NGOs, professional
associations, trade unions, universities etc) in the process of initiating
constitutional changes and what kind of role, in your opinion, should it play?
 NDNYDWDXORJDSRYDPDWUHEDGDEXGH"
    1H]QD
Does not know
  

Civil sector should
&LYLOQLVHNWRUWUHEDGD
 advocate the status quo
VH]DODæH]D6WDWXVTXR

 Civil sector should not
&LYLOQLVHNWRUQHWUHEDGD
interfere in initiating
VHPHäDXSRNUHWDQMH
 constitutional changes
  XVWDYQLKSURPHQD
  Civil sector should play
&LYLOQLVHNWRUWUHEDGDLJUD
 some role in initiating
QHNXXORJXXSRNUHWDQMX
 constitutional
XVWDYQLKSURPHQD changes
 &LYLOQLVHNWRUWUHEDGDLJUD
Civil sector should play
VDPRVWDOQXLDNWLYQX
an autonomous and
 XORJXXSRNUHWDQMX
active role in initiating
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite constitutional
XVWDYQLKSURPHQDchanges

A small number of civil society representatives expressed an opinion that their

attitudes would not be acknowledged because they would be marginalized –
both by the political elite and by citizens, emphasizing that they would be able
to exert an influence only to the extent the political parties allowed them to.
Some political party members and a small part of civil society representa-
tives stress the importance of activating only those parts of civil society that
possess expertise on the subject.
Those political party members who do not support active role of civil so-
ciety (10%) hold that civil society acts neither in the interest of citizens nor
in the interest of the state and further more that it does not have legitimacy
because it is not elected by citizens.

How do you see the role of the media in initiating constitutional changes?
Most media representatives (53%) think that each media outlet should
pursue its own editorial policy in terms of initiating constitutional reform,
while 40% think that the media should play an active role. Only 7% think that
media should not interfere in the process of initiating constitutional reform.
Media houses which maintain that media should play an active role in ini-
tiating constitutional reform mostly argue that it is very important to inform
the public about the contents of constitutional reform by publicly presenting
confrontations of various views i.e. advocate an unbiased approach, which
would preclude the overbearing influence of any interest group.

076
Media: How do you see the role of media in initiation of constitutional
changes? 
Media should not interfere in
 initiating constitutional changes




 Each media should pursue
its own editorial policy




Media should play an
active role in initiating
constitutional changes
Media
0HGLML

It is interesting that those who maintain that media should pursue their
own editorial policy even regarding constitutional reform argue in almost ex-
actly the same way: that it is crucially important that the media be unbiased,
that they ought not to represent interests of political parties and that all views
on constitutional reform should be present in the media; that media should
inform the citizens and explain the contents of the Constitution.
Only two representatives of the media were skeptical about the ability
of media to be unbiased and expressed an expectation that media would be
under the influence of political parties.

If constitutional changes were to occur, in your opinion how should they be

carried out? In the way envisaged by the present Constitution or by a special
constituent assembly?
Most representatives of the elite (67%) said that constitutional reform
should be carried out in a way envisaged by the present Constitution, while
45% of citizens think that constitutional changes should be carried out by a
special assembly elected by the people.

Citizens: If constitutional reform were to be initiated, in which of the

following ways should they be carried out?
Does not know


Constitutional reform should be carried out by the MPs,
 but only after elections had been held and should the
reform be considered necessary

Constitutional reform should be carried out by the Mem-
bers of the existing Parliament

 Constitutional reform should be carried out by a special

assembly to which people could elect those they deem
would do the job well
Constitutional reform should be carried out by the Presi-
 dent of the Republic who had announced them long time
ago and who knows best what should be changed
*UDĀDQL
Citizens

077
Elite: If constitutional reform were to be initiated, in your opinion how
should it be carried out? In a manner envisaged by the existing
Constitution or by a special assembly?

Does not know
   1H]QD

 

 
 8VWDYQHSURPHQH
Constitutional reform
 should be carried out by
WUHEDGDVSURYHGH
 aSRVHEQDVNXSäWLQD
special assembly
   


 In a manner envisaged by
2QDNRNDNRSUHGYLĀD
the existing Constitution
SRVWRMHýL8VWDY
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

If the initiative for constitutional revision were to be taken, in your opinion

how important is it to hold a public debate about possible solutions to be
adopted by the Constitution?
The importance of public debate is much better understood by the elite
than by the citizens. As much as 91% representatives of the elite think that
without public debate any constitutional revision would not be serious. The
most frequent attitude among the citizens is also that without public debate
possible constitutional reform would not be serious (43%).

Elite: If an initiative to change or amend the Constitution were to be

taken, in your opinion how important would it be to hold public debate
about possible solutions to be adopted by the Constitution?
     It3 is fully irrelevant, since
 M
pubic debate would not
 Q
exert any infuence



'
 ItM is good to have a public
debate,
D but its outcome is
    non-binding
Q

%
Without public debate
M
constitutional amendments
8
would not be serious
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

078
Citizens: If an initiative to change or amend the Constitution were to be
taken, in your opinion how important would it be to hold public debate
about possible solutionsJto be adopted by the Constitution?
 Does not know
1H]QD


It is fully irrelevant, since public debate
 3RWSXQRMHQH
would not exert any influence


 It is good to have a public debate,

'REURMHGDE
but its outcome is non-binding
DOLMHQMHQLVK
 for a constitution-maker
It is important to have a public debate
9DæQRMHGDE
if there is enough time to organize it
DNRLPDGRYR


Without public debate constitutional
%H]MDYQHUDVS would not be serious
amendments
Citizens
*UDĀDQL

Do you think that constitutional revision should be discussed by political

parties in election campaigns?
Most representatives of the elite (57%) think that the topic of constitu-
tional revision should find its place in election campaigns of political parties,
while 32% think it should not.

Elite: Do you think that constitutional changes should be debated by

political parties in election campaigns?
S S S M
Does not know
   1H]QD


 

1H
No


  



'D
Yes
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

The representatives of the elite who think that the Constitution should be
the topic of election campaigns explain this most often by giving one of the
two following reasons:
– The Constitution, as the supreme legal and political act, should determine
the direction in which a society develops and it should therefore be a topic of
political campaigns.
– Political parties should take a clear stance towards possible constitu-
tional revision and if they are in favor of it, they should explain in what direc-

079
tion changes should be made; all this may signal to citizens which values they
uphold and thus help them decide for which political party to vote.

The representatives of intellectual and social elite who think that the Constitu-
tion should not be a topic of political campaigns mostly explain that broaching
this question in campaigns would lead to its simplification and instrumentali-
zation. The representatives of political elite who oppose the idea to bring the
question of the Constitution into political campaigns explain this by saying
that in Serbia there are much more pressing issues, mostly economic, and that
such issues should form a backbone of election campaigns.

Does your political party plan to discuss the Constitution in its election cam-
paign?
Slightly less than one half of representatives of political parties (48%) said
they would discuss the Constitution in the election campaign, and 56% in princi-
ple supported the idea that political parties should discuss it in their campaigns.
The political party representatives who in principle support the view that po-
litical parties should discuss the Constitution in election campaigns, but who
will not make the Constitution a topic of their election campaign, explain this
by saying that the issue of constitutional revision is far removed from everyday
life of citizens and that it would not attract voters.

Political elite: Does your political party intend to discuss

the Constitution
 in the election campaign?
 Does not know
1H]QD




1H
No





'D
Yes
Political elite
3ROLWLFNDHOLWD

080
D) ATTITUDE TOWARDS SPECIFIC CONSTITUTIONAL PROVISIONS

D1. The Preamble

– If the Preamble were to be marked from 1 to 5, with 1 being the lowest and 5
the highest - as in school, in the opinion of the elite it would deserve a mark
of 2.1.
– A great majority of citizens of Serbia, 88%, does not know why the Pre-
amble to the Constitution is significant.
– The majority of citizens - 52%, and of elite representatives - 78%, agree
that the Constitution has had no effect on preventing Kosovo from becoming
an independent state, contrary to the intention of the constitution maker.
– The majority of the elite - 76%, and around one half of citizens think that
the Preamble should not remain a part of the Constitution.
– An overwhelming majority of the elite, 70%, think that there is no need
to stress commitment to the goal of European Union membership in the Pre-
amble.
– Most representatives of the elite, 73%, do not support the idea that the
Constitution take a stance towards earlier regimes, while citizens are divided
on this point (38% support it and 34% do not). It is conspicuous that a much
larger percent of citizens than the elite supports such an idea.
– Most citizens, 62%, and representatives of the elite, 57%, agree that the
Constitution should regulate the relations between the civil society and state
bodies in order to delimit the power of political parties.

THE SIGNIFICANCE AND GRADING OF THE PREAMBLE

Do you know what the Preamble to the Constitution is significant for?
The great majority of the citizens of Serbia (88%) do not know what the
Preamble to the Constitution is significant for.
Only 11% of the population associates the Preamble with preservation of
territorial integrity of Serbia.

Citizens: Do you know why the Preamble to the Constitution is important?


1H]QD
Does not know





'UXJR
Other




Territorial integrity/Kosovo and
 7HULWRULMDOQLLQWHJULWHW .RVRYRL0HWRKLMD
Metohija are an integral part of Serbia
VXVDVWDYQLGHR5HSXEOLNH6UELMH
Citizens
*UDĀDQL

081
 If the Preamble were to be marked on a scale from 1 to 5 as in school, in
the opinion of the elite it would deserve a mark of 2.1.

Elite: Marking the Preamble on a scale from 1 to 5

Elite Political elite Social elite Intellectual elite

As much as 61% of members of the elite give either very bad or bad marks
to the Preamble of the Constitution. On average, the political elite gives better
marks to the Preamble (the average mark is 2.7) than either the intellectual
(average mark 1.8) or the social elite (average mark 1.7).
No representative of national councils of national minorities, national ex-
pert councils or independent bodies, non-governmental organizations, reli-
gious communities or the University has given the highest mark (mark of 5) to
the Preamble. The maximum mark given to the Preamble by a representative
of a national council, national expert councils or the University was 3.

THE ISSUE OF KOSOVO

Has the Constitution prevented the creation of the independent state of Ko-
sovo, as was the intention of the constitution maker?
In terms of the Constitution’s significance for the position of Kosovo, the
citizens and the elite are in agreement. Most citizens and members of the elite
think that the Constitution has had no effect on the prevention of creation
of the independent state of Kosovo: 41% of citizens and 49% think that the
Constitution is fully irrelevant for today’s status and future destiny of Kosovo,
while 11% of citizens and 29% of the elite think that the Constitution prevents
Serbia and Kosovo from becoming normal states.
It is representatives of political elite (28%) who most agree with the claim
that the Constitution prevents the creation of the independent state of Ko-
sovo, while representatives of the social elite significantly more than others
agree with the claim that the Constitution prevents both Serbia and Kosovo
from becoming normal states (42%).

082
According to interpretation of the Constitution framer, the Constitution
was primarily enacted in order to prevent creation of an independent state
of Kosovo. What is the achievement of the Constitution in this regard?

   1H]QD

Does not know
 
  8VWDYVSUHÿDYD
The Constitution prevents
   L6UELMXL.RVRYR
both Serbia and Kosovo from
 GDSRVWDQXQRUPDOQHGUæDYH
becoming  normal states
 8VWDY
The  SRWSXQRis
MH
Constitution QHYDæDQ
fully
  ]DGDQDäQMLVWDWXV
irrelevant for the present status
LGDOMXVXGELQX.RVRYD
and future destiny of Kosovo
 
    8VWDYVSUHÿDYD
The Constitution prevents
SRGHOX.RVRYD
division of Kosovo between
  Albanians
L]PHĀX6UEDL$OEDQDFD
Serbs and
   The Constitution prevents
  8VWDY VSUHÿDYD
creation of an VWYDUDQMH
QH]DYLVQHGUæDYH.RVRYR
independent state of
Citizens
*UDĀDQL Elite
(OLWD Political elite
3ROLWLÿNDHOLWD 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite Kosovo

In their comments on the Preamble, most representatives of the elite said

that the Preamble might exert an influence on internal affairs in the country
but not on international relations.
The respondents who think that the Constitution prevents the creation of
the independent state of Kosovo think that the Preamble “is the last line of
defense of territorial integrity and sovereignty“ preventing domestic politi-
cians from recognizing the independence.

THE PREAMBLE AS AN INHERENT PART OF THE CONSTITUTION

Does the Preamble makes sense today and should it remain a part of the
Constitution?
Most representatives of the elite, namely 76%, and around one half of citi-
zens think that the Preamble should not remain an integral part of the Consti-
tution. Only 35% of citizens and 18% of representatives of the elite think that
the Preamble should remain a part of the Constitution.

Do you think that the Preamble makes sense today and should
it remain
 a part of the Constitution? 

    1H]QD
Does not know
  
  The Preamble made sense
8YRĀHQMHSUHDPEXOH
then and makes sense now
MHLPDORVPLVODLWDGD
  and should remain a part of
LLPDVPLVODLVDGD
  LPLVOLPGDWUHED
Constitution of Serbia
  GDRVWDQHX8VWDYX6UELMH

  The Preamble
8YRGHQMH might MH
SUHDPEXOH have made sense
PRJOR
 atLPDWL
the VPLVOD
time when
X YUHPHConstitution
GRQRäHQMD was
 enacted, but does not make sense
8VWDYDDOLVDGDYLäHQHPD
 QLNDNYRJ
today andVPLVOD
should L WUHED MH out of the
be left
    L]EDFLWLL]8VWDYD
Constitution
 
 The Preamble
8YRGHQMH did notXmake
SUHDPEXOH 8VWDYany sense
 atQLMH
theLPDOR
timeVPLVOD
whenQLthe Constitution was
X WUHQXWNX
 
GRQRäHQMD8VWDYDLWUHEDMH
enacted and should certainly be left
*UDĀDQL
Citizens (OLWD
Elite 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite L]EDFLWLL]8VWDYD
out of the Constitution

083
 The least support to the Preamble is provided by representatives of social
and intellectual elite: as much as 86% representatives of social elite and 81% of
intellectual elite think that the Preamble should be left out of the Constitution.

THE COMMITMENT TO EU MEMBERSHIP, STANCE TOWARDS PREVIOUS

REGIMES, THE RELATIONSHIP BETWEEN CIVIL SOCIETY AND THE STATE
Should the Preamble express commitment of Serbia to become a member of
the European Union?
A large majority of representatives of the elite (70%) think that there is
no need to emphasize the commitment to the goal of the country’s European
Union membership in the Preamble.

Do you agree that the Preamble should contain the expression of com-
mitment to European Union membership?

   1H]QD
Does not know
 
 
 

   
  1H
No
 
 
 

   
'D
Yes
Citizens
*UDĀDQL Elite
(OLWD Political elite
3ROLWLÿNDHOLWD 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

Most representatives of the elite who are against the idea to express the
commitment of Serbia to membership in the EU in the Constitution think that
the Constitution as a legal act should have a permanent character and should
not contain goals which are subject to changes for any reason (e.g. the very fu-
ture of the EU is uncertain). They emphasize that promulgation of pro-European
values in the Constitution is much more important than the declarative commit-
ment to the goal of membership.

Should the Constitution take a stance towards earlier regimes (the regimes
of Tito and Milošević) and the crimes committed by the then authorities?
Most representatives of the elite (73%) do not support the idea that the
Constitution should take a stance towards earlier regimes, while citizens are
divided on the issue (38% support it and 34% do not). It is conspicuous that
a considerably higher percent of citizens than the elite supports this idea.

084
Should the Constitution take a stance towards previous regimes (the regimes
of Tito and Milošević) and crimes committed by the then authorities?

   

Does not know
1H]QD
 
 
 

    
 No
1H

 

 


 
  
 'D
Yes
Citizens
*UDĀDQL Elite
(OLWD Political elite
3ROLWLÿNDHOLWD 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

The idea that the Constitution should take a stance towards earlier regimes
is most frequently supported by representatives of national councils, national
expert councils and independent bodies, as well as by religious organizations. The
greatest resistance to this idea is put up by members of the political elite (81%).
The respondents who do not support the idea of taking a stance towards
earlier regimes mostly explain this by saying that it is a matter of history
rather than the Constitution, that such matters cannot be regulated by law
and that the Constitution should take a stance towards the future rather than
towards the past.

Should the Constitution regulate the relationship between civil society and
the state in order to delimit the power of political parties?
Most citizens (62%) and elite (57%) agree that the Constitution should
regulate the relationship between civil society and state in order to delimit
the power of political parties.

Should the Constitution regulate relations between civil society and

state bodies in order to delimit the power of political parties?
 
Does not know
    1H]QD

 
  

 
 1H
No


   

'D
Yes
*UDĀDQL
Citizens (OLWD
Elite 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

085
The greatest support to this proposal was given by representatives of the
social elite (71%) and the least by the political elite (48%).
The respondents who think that the relationship between the civil society and
the state should not be regulated by the Constitution provide different arguments
for such a view. Some respondents (mostly representatives of political parties)
think that civil society organizations do not work in the interest of the state, that
they are not well-intentioned, that they are financed from foreign sources and
that they should not interfere in the functioning of state and society. On the other
hand, the respondents who have positive attitude toward civil society organiza-
tions maintain that relations between civil society and the state should be regu-
lated by law rather than the Constitution and also raise a doubt that constitutional
regulation of this issue would produce substantial changes (political parties are
against it and civil society is not strong enough to exert an influence, so new
constitutional provisions regulating the relationship would be merely declarative).

D2. The Statehood

– Most representatives of the elite (59%) think that it would be better if Serbia
were defined in the Constitution as the state of all citizens living in it, while
28% agree with the existing definition (“Serbia is the state of the Serbian
people and all citizens living in it“).
– An overwhelming majority of representatives of the elite agree that the
fact that the coat of arms and flag of Serbia are determined by a law rather
than the Constitution is not a good thing and that all state symbols should be
defined under the Constitution.
– Around 70% of citizens know that the coat of arms of Serbia bears a crown and
less than one half of citizens knows the distribution of colors on the Serbian tricolor.
– On a scale from 1 to 5 as in school, representatives of the elite gave an
average mark of 3.5 to the flag, an average mark of 3.2 to the national anthem
and an average mark of 3.1 to the coat of arms. All symbols of Serbia have
received worse marks from the elite than from the citizens, who marked the
flag with an average mark of 4.3 and the coat of arms and the national anthem
with an average mark of 4.1.
– One half of representatives of the elite and a large majority of citizens
would not change the existing flag of Serbia.
– While most citizens (67%) think that the coat of arms should not be
changed, representatives of the elite do not agree: 30% think that the coat of
arms should remain as it is, 37% would change only parts and 24% think that
the coat of arms should be changed completely.
–Most representatives of the elite (55%) think that the coat of arms of
Serbia should not bear a crown.
– Only 23% of citizens and 19% of the elite would prefer the coat of arms
with “4 S-es“ to the existing coat of arms.

086
 – Every fifth citizen and most representatives of the elite think that the
national anthem should be changed either fully or partially.
– Among representatives of the elite there is no agreement what the na-
tional anthem, the flag and the coat of arms of Serbia symbolize. The most
frequent opinion of almost one half of the elite representatives is that the
national anthem, the flag and the coat of arms symbolize practically every-
thing: the Serbian state, citizens of Serbia and the Serbian people (history,
tradition...).
– Most representatives of the elite, 74%, agree (partially or fully) with the
stance that existing constitutional definition of supremacy of international law
makes it doubtful whether Serbia would abide by international legal treaties,
which could be a direct obstacle to Serbia’s membership in the EU.

THE DEFINITION OF THE STATE

In your opinion, how should the Constitution define the State?
Slightly more than one half of representatives of the elite (59%) think that
it would be better if Serbia were defined in the Constitution as the state of all
citizens living in it, while 28% thinks that the existing definition should remain
(“Serbia is the State of the Serbian people and all citizens living in it“). Only
one respondent said he thought that Serbia should be described exclusively
as the state of the Serbian nation.

In your opinion, what should

S the Constitution
M M say? M 8

  1H]QD
    Does not know
   
  
 Such definition
7UHEDL]RVWDYLW
   should be left out
WDNYRRGUHĀHQM
  

   'DMH6UELMDGUæ
That Serbia is a state
 VUSVNRJQDURGD
of Serbian people and
all  living in it
JUDĀDQDNRMLX
citizens
 
  That Serbia is a state
'DMH6UELMDGUæ
  
  of Serbian people
VUSVNRJQDURGD

  
  That Serbia is a state
  'DMH6UELMDGUæ
of  citizens living
all
VYLKJUDĀDQDN
in it
*UDĀDQL
Citizens (OLWD
Elite 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

Compared with attitudes of the elite, citizens are considerably more in-
clined towards choosing the ethnic definition of the state: to a greater
extent they opt for the ethnic concept as an important element (“Serbia is
the State of the Serbian people and all citizens living in it“ – 45%) and to
a lesser extent they opt for it as the only element (“Serbia is the State of
the Serbian nation“ – 15%).

087
 The representatives of political parties and the media are somewhat more
in favor of the existing definition, while representatives of national coun-
cils, national expert councils and independent bodies as well as of non-
governmental organizations and the University opt somewhat more often
for understanding Serbia as the State of all citizens living in it. A very small
number of respondents think that this definition should be fully left out.
The representatives of the elite who favor the existing definition say
that we are still living in the age of nation-states, that the ethnic definition
of citizenship is common in almost all European states and that it entails
no discrimination against citizens on any grounds. The respondents opting
for the civic concept of citizenship think precisely the opposite, namely
that emphasizing the national principle creates a division among citizens,
dividing them into first- and second-class citizens.

THE STATE SYMBOLS OF SERBIA: THE FLAG, THE COAT OF ARMS

AND THE NATIONAL ANTHEM
Do you think that it is good that the Constitution defines the national an-
them, while the coat of arms and the flag are defined by a law?
The overwhelming majority of the elite agrees that it is not a good thing
that the coat of arms and the flag are defined by a law, maintaining that all
state symbols should be defined under the Constitution.

Do you think that it is good that the Constitution specifies the national
anthem, while national coat of arms and national flag are specified by the law?
Not sure, should think about
it, does not want to talk
about it
No, all this should be
specified neither by the
Constitution nor by the law
No, all should be
specified by the law

No, all should be

specified by the Constitution

Yes

Elite Political elite Social elite Intellectual elite

The respondents who think that the Constitution should regulate all state
symbols consider that this would ensure permanence to the national an-
them, the coat of arms and the flag and avoid the possibility that the state
symbols are changed arbitrarily and easily by political majorities. Others,
however, maintain that state symbols should be regulated by laws precisely
in order to make them amenable to changes.

088
To what extent are citizens acquainted with the symbols of Serbia?
Around 70% of citizens know that the coat of arms of Serbia bears a crown,
while less than a half of citizens know the order of colors on the Serbian tricolor.

Citizens: Does the coat of arms of Serbia bear a crown?


1H]QD
Does not know





1H
No





'D
Yes
*UDĀDQL
Citizens

Citizens: What
 is the order of colors on the Serbian tricolour?
 1H]QD
Does not know


&UYHQRSODYREHOR
Red, blue, white



&UYHQREHORSODYR
Red, white , blue


3ODYRFUYHQREHOR
Blue, red, white



 3ODYREHORFUYHQR
Blue, white , red
*UDĀDQL
Citizens

Grading the symbols of the State

On a scale of school marks from 1 to 5, representatives of the elite gave the
flag an average mark of 3.5, to the national anthem an average mark of 3.2 and
to the coat of arms an average mark of 3.1. All symbols of Serbia are marked
worse by the elite than by citizens, who gave to the flag an average mark of
4.3 and to the coat of arms and the national anthem an average mark of 4.1.

089
Elite:
 Marking the symbols on a scale from
 1 to 5 
  
2GOLÿQR
Excellent
  
  
   


  
 
 
  

 

   

   
  
  
   9HRPDORäH
Very bad
=DVWDYD
Flag =DVWDYD
Flag +LPQDan.
National +LPQDan.
National Coat of arms Coat *UE
*UE of arms
*UDGDQL
Citizens (OLWD
Elite *UDGDQL
Citizens (OLWD
Elite *UDGDQL
Citizens (OLWD
Elite

As much as 80% of citizens and 50% of representatives of the elite gave

the flag a very good or excellent mark. Very good and excellent marks to the
national anthem were given by 73% of citizens and 40% of the elite, while the
coat of arms obtained either 4 or 5 from 72% of citizens and 39% of the elite.
The political elite gave best marks to the flag (56% gave an excellent or a
very good mark). The social elite (50%) gave it a somewhat worse mark and
the intellectual elite (42%) gave it an even worse mark.
The national anthem was marked in a similar way by political and intel-
lectual elite (42% gave the national anthem an excellent or a very good mark)
and representatives of civil society (36%) gave it a somewhat worse mark.
The representatives of social elite gave a somewhat weaker mark to the
coat of arms (32% said it was excellent or very good), while representatives of
political and intellectual elite were in harmony once again (43% i.e. 42% gave
the highest marks to the coat of arms).

Should the flag be changed?

One half of representatives of the elite and a large majority of citizens
(81%) would not change the existing flag of Serbia.

Regardless of how you marked the flag, in your opinion should it be changed?

1H]QD
Does not know
  
 

 
 
 No, it should not
1HQHWUHEDPHQ
  be changed
 
 

   

 Yes, it should
'DWUHEDORELSUR
be changed
*UDĀDQL
Citizens (OLWD
Elite 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite
090
The most frequent argument against changing the flag is that there were too
many changes and that now it is more important to establish continuity. The
respondents who maintain that the flag should be changed said that the coat
of arms should be removed from the flag.

Should the coat of arms be changed?

While most citizens (67%) think that nothing should be changed as regards
the coat of arms, representatives of the elite are not united in their opinion:
30% think that nothing should be changed, 37% think that only parts should be
changed and 24% thinks that the coat of arms should be completely changed.
The representatives of the social elite are most supportive of (at least par-
tial) changes to the coat of arms, while representatives of intellectual elite are
least supportive of these changes.

Regardless of your assessment

M of the
J coat
 of arms, do you
J think it
S
should
 be changed?
 Does not know
 1H]QD
   
 
 
No, nothing should
 be changed
 1HQLäWDQHWUHEDPHQMDWL


  Only parts should be
7UHEDORELPHQMDWL
 changed
 VDPRGHORYH

   
 Yes, it should be
'DWUHEDJD
 completely changed
SRWSXQRSURPHQLWL
Citizens
*UDĀDQL Elite
(OLWD Political elite
3ROLWLÿNDHOLWD Social elite Intellectual elite
'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD

The respondents mostly say that monarchist elements should be changed, be-
cause they are anachronistic and clash with the political system of Serbia as a re-
public. In accordance with such an opinion, more than one half of representatives
of the elite (55%) think that the coat of arms of Serbia should not bear a crown.

In your
 opinion, should the coat of arms of Serbia bear a crown?

1H]QD
Does not know

   


  
   1H
No



  

'D
Yes
*UDĀDQL
Citizens (OLWD
Elite 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite 091
The presence of crown on the coat of arms is considered by some respondents
as an attempt to establish false continuity with the time of the monarchy.
Contrarily, a considerable number of representatives of the elite, who do
not object to the crown on the coat of arms, emphasize that the crown symbo-
lizes continuity of Serbian statehood from the time when Serbia was a king-
dom and that it is a reflection of history and tradition rather than current
political circumstances.
On the other hand, some respondents emphasize that the existing coat
of arms does not include symbols of other peoples living in Serbia and that
some neutral solutions should be found with which everybody could identify.

Would the symbol of “4 S-es“ represent a more suitable coat of arms of Ser-
bia?
Only 23% of citizens and 19% of the elite prefer the symbol of “4 S-es“ to
the current coat of arms.
Even though the majority of members of the elite is not fully satisfied with
the existing coat of arms, they still prefer it to the symbol of “4 S-es“ (the
existing coat of arms is preferred by 42% of members of the elite, while “4S-
es“ are preferred by 19%). As much as 39% representatives of the elite would
choose neither of the two offered solutions.

If the alternative
RE H to the existing
Y SRV RMHýH coat
J EXof
E arms
R 6 were
RM E Vthe
H one
E with
R J4 ES-es,
6 E MH"
which one would you prefer as the coat of arms of Serbia? 

1LMHGDQRGWDGYD
None of the two

  
 
 

 
 46ÿHWLUL6
S-es



  

3RVWRMHýLJUE
Existing coat of arms
*UDĀDQL
Citizens (OLWD
Elite 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

The greatest resistance to both solutions is put up by representatives of the

social elite, more than half of which (54%) would choose neither the existing
coat of arms nor the “4 S-es.“

Should the existing national anthem be changed?

Only every fifth citizen, but the majority of representatives of the elite,
thinks that the national anthem should be changed either partially or com-
pletely.

092
 Every third member of the elite thinks that the national anthem should be
changed completely and every fifth member of the elite thinks that it should
be changed partially. The attitude that the national anthem should be changed
is most frequent among members of the social elite and least frequent among
members of the political elite.

Regardless of how you marked the national anthem, in your opinion

should it be changed?
Does not know

No, nothnig should

be changed

Only parts should

be changed

Yes, it should
be changed
Citizens Elite Political elite Social elite Intellectual elite

The representatives of the elite who support changes of the national anthem,
either fully or partially, mostly argue that the national anthem should not
contain ethnic or religious symbols. In their opinion, the citizens of Serbia who
are not of Serbian ethnic origin can hardly identify with the existing national
anthem. On the other hand, some respondents maintain that the national
anthem should be changed to restore the original lyrics (containing the word
“king“ that had been replaced).

What do the national anthem, the flag and the coat of arms of Serbia sym-
bolize?
Among representatives of the elite there is no agreement what the national
anthem, the flag and the coat of arms of Serbia symbolize. The most frequent
opinion of almost one half of the respondents is that the national anthem, the
flag and the coat of arms symbolize everything: the Serbian state, citizens of
Serbia and the Serbian nation (history, tradition etc).
This opinion is mostly expressed by intellectual elite (62%), subsequently
by social elite and the least by political elite (37%).
Only 5% of the respondents said that the symbols of Serbia symbolized the
citizens of Serbia. Only 17% said they symbolized the Serbian nation and 30%
said they symbolized the Serbian state.

093
What do the national anthem, the flag and the coat of arms of Serbia
symbolize? ãWDVLPEROL]XMXKLPQD]DVWDYDLJUE6UELMH"
 
 
  1H]QD
Does not know
 
  State, citizens
'UæDYX and Serbian
JUDĀDQH
  nation
LVUSVNLQDURG
  
 *UDĀDQH6UELMH
Citizens of Serbia
 
 
  6USVNLQDURG
Serbian nation

   6USVNXGUæDYX
Serbian state

Elite 3Political
OL LÿN elite
OL ' Social
ä eliteOL , Intellectual
O N O elite
OL

A majority of representatives of the elite, 52%, think that citizens of Serbia

who do not belong to the Serbian nation cannot identify with the national
anthem, the flag and the coat of arms of Serbia. This opinion is shared by less
than a half of representatives of political elite (40%) and most representatives
of intellectual elite (62%) and social elite (58%).

Do you think that those citizens of Serbia who do not belong to the Ser-
bian nation can also identify with the national anthem, the flag and the
coat of arms of Serbia?

Does not know

No

Yes
Elite Political elite Social elite Intellectual elite

THE SUPREMACY OF LAW

Does the way in which the Constitution concede supremacy of international over
national law weaken the international position of Serbia and represent a direct
obstacle to the EU membership?
Most representatives of the elite, 74%, agree (partially or fully) with the
statement that the present constitutional definition of the relationship be-
tween the international and national law raises doubts on the supremacy of
the international over the national law, which might prove to be a direct ob-
stacle to Serbia’s membership in the EU.

094
Do you agree with the statement that the manner in which the relationship
between the international and national law actually weakens the
international position of Serbia?
RQDGUHĀHQRVWLPHĀXQDURGQRJSUDYDXVWYDULVODELPHĀXQDURGQLSRORæDM6UELMH
8RSäWHVHQHVODæH
Fully disagrees

 
 
 
 
 'HOLPLÿQRVHVODæ
Partially agrees
 


 

3RWSXQRVHVODæH
Fully agrees
Elite
(OLWD Political elite
3ROLWLÿND HOLWD Social elite
'UXäWYHQD HOLWD Intellectual elite
,QWHOHNWXDOQD HOLWD

Even though in minority, some respondents think that it is wrong to say that
the supremacy of international over national law is insufficiently guaranteed
in the Constitution. According to them the Constitution grants supremacy to
international law i.e. the Constitution does not make it impossible for the coun-
try to ratify international documents. The most do concede that supremacy of
international law is an important principle that should not be jeopardized if we
want to be a reliable partner in international relations.

D3. The political system

– A majority of representatives of the elite (83%) and most citizens (80%) think
that the constitutional provisions establishing the imperative mandates of the
Members of Parliament should be amended.
– 77% of citizens and 71% of representatives of the elite agree that the
number of the Members of Parliament should be reduced.
– Most representatives of the elite who agree that the number of MPs
should be reduced think that reduction of the number of MPs would not affect
the territorial representation.
– Only 18% of representatives of the elite agree that there is a clear separa-
tion of powers among executive, legislative and judicial branches of govern-
ment in Serbia.
– A large majority of representatives of the elite agree that independence of
the judiciary should be provided with more explicit constitutional guarantees.
– A majority of citizens, namely 58%, think that the judiciary in Serbia is
completely politicized and as much as 73% that the 2009 general re-election
of judges was influenced by parties and politicians, jeopardizing constitution-
ally guaranteed independence of the judiciary.
– Only 26% of citizens think that the judiciary today is more independent
than it was at the time of communism and only 27% that it is more independent
than at the time of the Milošević regime.

095
 – One half of citizens and 72% of the elite think that re-election of judges
should be conducted by a special body made up only of representatives of
the profession.
– Slightly less than one half of citizens of Serbia (48%) is aware of the
existence of independent state bodies, but does not know that their role and
independence is guaranteed by the Constitution. More than one third of citi-
zens (36%) is not aware of the existence of independent state bodies.
–Only 2% of citizens and 4% of the elite think that independent state bod-
ies are fully equipped to do their job (to control the government and state
administration) and another 8% of citizens and 15% of the elite think that they
are mostly equipped to do so.
– As much as 72% of representatives of the elite think that the Constitution
should provide firmer guarantees to the position of independent state bodies.
– As much as 81% of representatives of the elite believe that it would be
good to systematically regulate the area of independent state bodies, also
constitutionally regulating other autonomous and independent bodies with
similar areas of jurisdiction.

MEMBERS OF PARLIAMENT
Should constitutional provisions establishing imperative mandates of the
Members of Parliament be changed?
Most representatives of the elite (83%) and citizens (60%) think that the
constitutional provisions establishing imperative mandates of the Members
of Parliament should be changed.

Should constitutional provisions establishing imperative mandates be

amended so asS to еstablish
M free mandatesM of MPs won in direct elections?
    Does not know
1H]QD
  
 

 
 
 1H
No

 



Yes
'D
*UDĀDQL
Citizens (OLWD
Elite 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

The political elite support the independence of MPs from their political par-
ties slightly less than others. While 85% of representatives of intellectual
elite and as much as 96% of representatives of social elite think that free
mandates of MPs would be a better solution, 69% of political elite share this

096
view. The representatives of political elite who object to lifting of provisions
establishing imperative mandates, i.e. blank resignation, argue that demo-
cracy in Serbia is still insufficiently consolidated and the society economi-
cally developed. Therefore in their opinion, free mandates of MPs would lead
to greater abuse of the MP positions and political corruption (e.g. trade with
MP mandates, “buying” MP votes by tycoons to gain influence and political
power).
Those who think that MPs mandates should be free maintain that such a
change would raise the level of accountability of politicians.

Should the number of MPs be changed?

77% of citizens and 71% of representatives of the elite agree that the
number of Members of the Parliament should be changed.

Citizens: Should the number of MPs be changed?

Does not know

It should not be changed

Yes, it should be increased

Yes, it should be decreased

Elite: Should the number of MPs be decreased?

Does not know

No

Yes

Elite Political elite Social elite Intellectual elite

This proposal is least supported by the political elite. As much as 42% of rep-
resentatives of political parties think that the number of MPs should not be
reduced. In their opinion, the number of MPs is proportional to the number

097
of inhabitants and one should consider changing it only if the election system
is changed.
All respondents from national expert councils and independent bodies,
religious communities and media agree that the number of MPs should be
reduced.

Would the reduction of the number of MPs affect territorial representation

in the Parliament?
Most respondents who agree that the number of MPs should be reduced
think that it would not affect territorial representation.

Would decreasing the number of MPs affect territorial representation

of MPs in the National Parliament?




1HELX
It would not affect


   



8WLFDOD
It would affect



   

(OLWD
Elite 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

The minority who believe that the reduction of the number of MPs would af-
fect territorial representation emphasize that a more proportional territorial
representation does not exist anyway and that reduction of the number of MPs
would reduce expenses, lead to more efficient functioning and easier control
of the Parliament’s work.
Those who think that territorial representation would not be affected by
a reduction of the number of MPs emphasize that such representation does
not exist anyway and that this could be improved only by changing electoral
law so as to introduce greater number of electoral units. The respondents
often emphasized that better representation would be achieved through de-
centralization and regionalization and there are respondents who think that
a two-chamber Parliament would be the best solution.

SEPARATION OF POWERS
Is there a clear separation of powers into the executive, legislative and judi-
cial branches of government in terms of independence, accountability and a
system of checks and balances?

098
 Only 18% of representatives of the elite think that there is a clear separa-
tion of powers into executive, legislative and judicial branches of government
in Serbia. A greater percent (37%) think that the separation of powers does
not exist at all, but the most common opinion is that the separation of powers
exists “to a certain degree“ (45%).

Elite: In your opinion, to what extent is there separation into executive,

legislative and judicial branch of government?
There is no
8RSäWHQHSRVWRML
separation at all


 
 
 
 
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'RQHNOHSRVWRML
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   There is clear separation
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Elite
(OLWD 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

The representatives of the elite mostly do not object to the way in which the
separation of powers is defined under the Constitution, but to the fact that
this principle is insufficiently implemented in practice. They hold that the ju-
diciary and the Parliament are subordinated to the executive branch (election
of judges and imperative mandates). Apart from predominance of executive
branch, the respondents also mention the negative influence of political par-
ties and informal centers of power.

INDEPENDENCE OF THE JUDICIARY

Should independence of the judiciary in Serbia be provided with more explicit
constitutional guarantees?
An overwhelming majority of representatives of the elite agrees that in-
dependence of the judiciary should be provided with firmer constitutional
guarantees.
This opinion is shared by most representatives of the social elite (86%),
then intellectual elite (73%) and slightly less by representatives of political
elite (68%).
Even the respondents who think that the Constitution should reinforce the
independence of the judiciary do not have too many objections to constitu-
tional provisions as such. They say that the problem exists primarily in practice
and in the way in which constitutional solutions are implemented.

099
 The respondents who do not think that firmer guarantees are needed say
that the Constitution does provide the best possible guarantees and that all
other details should be regulated by better laws.

Elite: In your opinion, should constitutional guarantees for independence

of the judiciary in Serbia be reinforced?
    Does not know
1H]Q

  



1H
No

  

'D
Yes
(OLWD
Elite 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

Is the judiciary in Serbia politicized?

Most citizens, 58%, think that the judiciary in Serbia is fully politicized
and as many as 73% think that the 2009 re-election of judges was influenced
by parties and politicians, thus jeopardizing the constitutionally guaranteed
independence of the judiciary.
Only 26% of citizens think that the judiciary is more independent today
than it was at the time of communism and 27% that it is more independent
than at the time of the Milošević regime.

Citizens: In your opinion, to what extent, if at all, is judiciary in Serbia

politicized?
 1H]QD
Does not know



6XGVWYRX6UELMLMHSRWSXQRSROLWL]RYDQR
Judiciary in Serbia is fully politicized



 Judiciary in Serbia is mostly independent
6XGVWYRX6UELMLMHSUHWHæQRQH]DYLVQR
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political influence exists,
 but to a lesser extent

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6XGVWYRX6UELMLMHSRWSXQRQH]DYLVQR
 there is no political influence
QHSRVWRMLSROLWLÿNLXWLFDM
Citizens
*UDĀDQL

100
Citizens: Which attitude about December 2009 re-election of judges
within reform of the judiciary is closer to yours?
M
11% 1H]QD
Does not know

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The re-election was influenced by politicians
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Citizens of their previous work

Citizens: Is the judiciary now more or less independent compared with…?


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 ,VWRN
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 1H]DYindependent
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8RGQRVXQDYUHPH0LORäHYLýHYRJUHæLPD

How should the judges be appointed?

One half of citizens and 72% of representatives of the elite think that the
appointment of judges should be made by a special body made up exclusively
of representatives of the profession. As many as 25% of citizens think that
judges should be elected by the people.

How should the judges be appointed?


    Does not know
1HPRæHG
 
 
  They should be appointed
7UHEDGDLK
by MPs
SRVODQLFLX


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   the executive government
  L]YUäQDYOD
 7UHEDGDLK
 They should be appointed
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 by a special body made up
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    They should be elected
7UHEDGDLK
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*UDĀDQL
Citizens (OLWD
Elite 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite
Almost all representatives of national expert councils, independent bodies and
non-governmental organizations said that independent expert bodies should
be the ones to appoint the judges.
That this is a complex issue is demonstrated by a large number of various
comments and ideas the respondents have expressed. A large majority thinks
that a professional body is the most competent to propose lists of candidates
for judges, adding that the act of appointment itself should be carried out by
somebody else – the MPs or the people. A mixed model which implies moni-
toring the expert body was also proposed in order to make sure that such
professional body is free from political influence.

INDEPENDENT STATE BODIES

Are citizens aware of the existence of independent state bodies?
Almost one half of citizens of Serbia (48%) is aware of the existence of in-
dependent state bodies but does not know that their role and independence is
guaranteed by the Constitution, while more than one third (36%) is not aware
of the existence of these bodies.

Citizens: The existing Constitution envisages existence of state bodies

independent of executive government (Ombudsman, Commissioner for
Public Information, State
 Auditor…)
J Are
 you aware of the existence
M  of
these
 independent state bodies?
'DOLVWH]QDOL]DSRVWRMDQMHRYLKQH]DYLVQLKGUæDYQLKRUJDQD"

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NDRLGDMHQMLKRYDXORJD
and that their role and independences is
 LQH]DYLVQRVWJDUDQWRYDQD8VWDYRP
guaranteed by the Constitution



 Yes, I am aware of the existence of these
'D]QDPGDSRVWRMHWLRUJDQL
bodies, but I did not know that their role
DOLQLVDP]QDRODGDMHQMLKRYDXORJD
 and independence is guaranteed by
LQH]DYLVQRVWJDUDQWRYDQD8VWDYRP
 the Constitution



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of these bodies
 *UDĀDQL
Citizens

Are independent state bodies truly equipped to do their job i.e. to independ-
ently and autonomously control the government and the state administra-
tion?
Only 2% of citizens and 4% of representatives of the elite think that inde-
pendent state bodies are fully equipped to do their job (control the govern-
ment and state administration), 8% of citizens and 15% of the elite think that
they are mostly equipped to do so.

102
Elite: Are independent state bodies truly able to do their job i.e.
to independently and autonomously control the government and
state administration? M
 1H]QD
Does not know
  
   
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Yes, fully
 
 
  8JODYQRPGD
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  ,GDLQH
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*UDĀDQL
Citizens (OLWD
Elite 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

The representatives of the elite often express an opinion that the work of
independent state bodies primarily depends on the personal courage with
which people who do that job resist political pressure and preserve their in-
dependence.

Should the Constitution provide firmer guarantees to the position of these

bodies so that they could control executive authorities and state administra-
tion in an independent and good way?
While citizens of Serbia mostly think that there is no need to provide firmer
constitutional guarantees to these bodies and that implementation of these
provisions should be ensured by appropriate legislation, 72% of representa-
tives of the elite think that the Constitution should provide firmer guarantees
to the position of independent state bodies.

Citizens: Should the Constitution provide firmer guarantees for the posi-
tion of these bodies so that they could control executive government and
state administration in a more independent and better way?

1H]QDP
Does not know


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1H GRYROMQR MH äWRtext
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HOLWD the Constitution

103
Elite: Should the Constitution provide firmer guarantees to the position
of these bodies so that they could control executive government and state
administration in a more independent and better way?
Does not know

No

Yes
Elite Political elite Social elite Intellectual elite

Should the role of these bodies as well as other bodies with similar areas of
jurisdiction (Commissioner for Information of Public Information and Per-
sonal Data Protection, The Anti-Corruption Council) also be systematically
regulated by the Constitution?
Most representatives of the elite (61%) believe that it would be good to
systematically regulate this area, including other bodies with areas of juris-
diction similar to that of independent state bodies. This opinion is most fre-
quently expressed by members of the social elite (75%) and least frequently
by members of the political elite (52%).

Elite: Should this field be systematically regulated by the Constitution

including other bodies with similar areas of jurisdiction (Commissioner for
Information of Public Importance and Personal Data Protection, The Anti-
Corruption3RYHUHQLN]DLQIRUPDFLMH6DYHW]DERUEXSURWLYNRUXSFLMHLWG"
Council etc)?
 1H]QD
Does not know

  
 
 
  
 
 1H
No 
 
 


'D
Yes
(OLWD
Elite 3ROLWLÿND HOLWD
Political elite 'UXäWYHQD HOLWD
Social elite ,QWHOHNWXDOQD HOLWD
Intellectual elite

104
D4. The territorial organization
– The citizens (74%) and the elite (67%) agree that the Constitution pays too
much attention to territorial integrity and too little to balanced territorial
development.
– Most representatives of the elite, 82%, think that the Constitution should
contain more provisions concerning decentralization.
– Most representatives of the elite think that decentralization would en-
able citizens to take greater part in decision-making (82%), would effect more
balanced territorial economic development (81%) and ensure greater account-
ability in discharge of public office (82%).
– As regards the constitutional status of Vojvodina, the most common opin-
ion among both citizens (43%) and the elite (40%) is that Vojvodina has an
optimal autonomy.

Do you think that the Constitution pays too much attention to territorial
integrity of Serbia and too little to its harmonized territorial development?
Most citizens (74%) and representatives of the elite (67%) think that the
Constitution pays too much attention to territorial integrity and too little to
harmonized territorial development.

Some people think that the Constitution gives too much attention to
territorial integrity of Serbia and too little to evenness of territorial
development. Do you agree with this?
DSUHPDORUDYQRPHUQRäýXWHULWRULMDOQRJUD]YRMD'DOLVHVODæHWHVDWLPH"
 1H]QD
Does not know
  
   

 


1H
No


 
  

'D
Yes
Citizens
*UDĀDQL Elite
(OLWD Political elite
3ROLWLÿNDHOLWD Social elite Intellectual elite
'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD

As a way to improve balanced territorial development, the elite most often

mentions decentralization and regionalization which would enable better al-
location of economic resources and creation of adequate tax and other fiscal
incentives. On the other hand, a slightly smaller number of respondents think
that the issue of balanced territorial development is not a matter to be regu-
lated by the Constitution but by normal legislation.

105
In your opinion, should the Constitution contain provisions that concern
decentralization?
Most representatives of the elite (82%) think that the Constitution should
contain more provisions that concern decentralization. The respondents who
do not share this view maintain that the Constitution has sufficiently regulated
this issue and that it should be operationalized through accompanying laws.

Elite: In your opinion, should the Constitution contain provisions

on decentralization?
 1H]QD
Does not know
 
 
 



 1H
No

 


'D
Yes
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

Would decentralization ensure greater participation of citizens in decision-

making i.e. greater democratization of government?
A majority of representatives of the elite (82%) think that decentralization
would enable the citizens to take greater part in decision-making. Those who
think that decentralization does not automatically imply democratization of
government (18%) often say that there is a danger that instead of one central-
ized autocratic bureaucracy we would have several local ones.

Elite: Would decentralization ensure greater civic participation

in decision-making i.e. greater democratization of government?


 
 
1H
No




   
Yes
'D




7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

106
Would decentralization ensure conditions for more harmonized territorial
economic development and thus faster economic growth?
Most respondents (81%) think that decentralization would boost more har-
monized territorial economic development. Those who doubt that decentrali-
zation would boost more balanced territorial economic development cite the
following reasons: on the one hand, they doubt that it would be implemented
in practice, and on the other, that probable consequences of implementation
would be feudalism of the state and even more irrational disbursal of budget-
ary resources.

Elite: Would decentralization ensure conditions for more balanced territo-

rial economic development and thus accelerate economic growth?
 ]DUDYQRPHUQLMLWHULWRULMDOQLHNRQRPVNLUD]YRMLWDNREUæLHNRQRPVNLUD]YRM"
   Does not know
1H]QD
   




1H
No
   

'D
Yes
Total
7RWDO 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

Do you think that decentralization would ensure greater accountability in

discharge of public office?
Most representatives of the elite (82%) think that decentralization would
ensure greater accountability in discharge of public office. Those who think
that decentralization would not ensure greater accountability (16%) argue
that mere transferring of authority from one level of government to the other
does not guarantee greater accountability and argue that instead, mechanisms
should be put in place through appropriate laws and regulations which would
ensure accountability in discharge of public office.
Generally, those who advocate decentralization specify the following ad-
vantages: more direct influence of citizens on government, greater adjustment
to the needs of citizens and better control of public authorities. However, they
also maintain that accompanying mechanisms should additionally be put in
place in order to ensure it.

107
Elite: Would decentralization ensure greater accountability
in the discharge of public office?
(OLWD'DOLELGHFHQWUDOL]DFLMDREH]EHGLODYHýXRGJRYRUQRVWYUäHQMDYODV

  Does not know
1H]QD
  




1H
No
   




'D
Yes
Total
7RWDO 3ROLWLÿND HOLWD
Political elite 'UXäWYHQD HOLWD
Social elite ,QWHOHNWXDOQD HOLWD
Intellectual elite

What do you think about the constitutional status of Vojvodina?

Concerning the constitutional status of Vojvodina, the most frequent view
of both citizens (43%) and the elite (40%) is that Vojvodina has an optimal au-
tonomy. The representatives of the elite have somewhat more positive attitude
towards autonomy of Vojvodina than citizens: 29% of the elite and just 16%
of citizens think that Vojvodina has too little autonomy, while 23% of citizens
and only 6% of the elite think that Vojvodina has too much autonomy; 11% of
citizens and just 5% of the elite think that the autonomy of Vojvodina should
be revoked.

What do you think about constitutional position of Vojvodina?

1LMHVLJXUDQ
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 9RMYRGLQDLPD
Vojvodina has too little
  SUHPDOXDXWRQRPLMX
 autonomy
 
 
 Vojvodina has optimal
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  autonomy
 RSWLPDOQXDXWRQRPLMX
 
 
  Vojvodina has too much
9RMYRGLQDLPD
   autonomy
SUHYHOLNXDXWRQRPLMX
  
     Autonomy of Vojvodina
7UHEDXNLQXWL
 should be revoked
DXWRQRPLMX9RMYRGLQH
Citizens
*UDĀDQL (OLWD
Elite 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

The representatives of the elite who think that the autonomy of Vojvodina
should be revoked argue that entire Serbia should be organized in accordance
with a regional principle and that in this sense special autonomy for Vojvodina
is superfluous; the representatives of the elite who think that Vojvodina has
too much autonomy argue that the attributes of statehood which Vojvodina
possesses lead to disintegration of the country.

108
 The representatives of the elite who think that Vojvodina has an optimal
autonomy argue that greater autonomy would lead to disintegration of the
country and express a view that the real problem is not the autonomy of Vo-
jvodina but the fact that the rest of Serbia is not divided into regions and that
in this sense Vojvodina has a privileged position over the rest of the country.
Finally, representatives of the elite who think that Vojvodina has too little
autonomy say that Vojvodina does not fully exercise its jurisdiction in terms
of financial resources (even though such constitutional provisions exist) and
in terms of sufficient regulatory authority in areas of its jurisdiction, which
limits its possibility to enact regulations.

D5. Human rights

– If the catalogue of human rights in the existing Constitution were to be
graded with notes from 1 to 5 as in school, in the opinion of the elite, it would
deserve a mark of 3.9. This part of the Constitution received much higher
average marks than the Constitution as a whole (2.8).
– Almost one half of representatives of the elite think that there are human
rights which are badly regulated. This assessment fits well with spontaneously
expressed general assessments of the Constitution, in that the constitution
maker has some omissions in the area of human rights. The respondents who
think that there are some rights enshrined in the Constitution which are badly
regulated mostly specify minority rights and in particular the rights of sexual
minorities.
– A great majority of citizens, 72%, knows nothing about human rights
guaranteed by the Constitution (7% think that there is no part of the Constitu-
tion dealing with human rights, 27% do not know whether it exists or not, and
38% know that it exists, but do not know anything more about it). The elite is
aware that citizens of Serbia are little if at all acquainted with human rights.
– A majority of citizens (73%) think that it is very important to be acquaint-
ed with human rights guaranteed under the Constitution so as to be able to
exercise and protect them.
– Every fifth citizen thinks that human rights are indeed observed in Ser-
bia (17% think that they are mostly observed and only 3% that they are fully
observed).
– Among the citizens and the elite there is agreement that the state bears
the greatest responsibility for the fact that citizens are not sufficiently ac-
quainted with human rights guaranteed under the Constitution because it
does not provide sufficient information to citizens. This view is expressed by
52% of citizens and 53% of representatives of the elite.
– In order to improve the level of information among citizens about human
rights guaranteed under the Constitution, most representatives of the elite
specify four possible types of engagement: 1) Education – introducing the
topic of human rights to the system of education (schools) from the young-

109
est age; 2) Communication - informing the citizens, which is an obligation of
the state under accepted EU conventions; 3) Greater engagement of media,
especially the Public Broadcasting Service; 4) Engagement of civil society
organizations – in synergy with the state (local self-governments), the institu-
tion of the Ombudsman and the media.

A general assessment of the catalogue of human rights in the existing

Constitution
If the catalogue of human rights in the existing Constitution were marked
with school marks from 1 to 5, in the opinion of the elite it would deserve a
mark of 3.9. This part of the Constitution receives significantly better average
marks than the Constitution as a whole (2.8).
Just like the Constitution as a whole, the catalogue of human rights re-
ceived best marks from the political elite (an average mark of 4.2), then from
the intellectual elite (an average mark of 3.8) and lowest marks from the so-
cial elite (an average mark of 3.6). Almost one third of representatives of the
political elite marked the corpus of human rights with a mark of 5, while only
11% of representatives of the social elite and 8% of representatives of the
intellectual elite gave it the same mark.

Elite: Mark the catalogue of human rights on a scale from 1 to 5



  1HPRæHGDRFHQL
Can not mark
 
 
 
 
 
   
 
 
 

  
    
   

7RWDO
Total 3ROLWLÿNDHOLWD
Political elite CSO
'UXäWYHQDHOLWD ,QWHOHNWXDOQDHOLWD
Intellectual elite

Are there human rights that are improperly regulated by the Constitution?
Almost one half of representatives of the elite think that there are human
rights that are badly regulated by the Constitution.
The representatives of the elite who think that there are rights which are
badly regulated by the Constitution most frequently specify minority rights: not
national minority rights but the rights of sexual minorities. Minority rights, these
respondents think, are not sufficiently protected. In this group of rights, they
specify the definition of marriage (the right of sexual minorities to marriage be-
tween same-sex partners), the definition of family – family right, the prohibition

110
of violence and torture, reproductive rights: the right to free decision-making
about giving birth (the right to abortion); gender equality, provisions on pro-
hibition of discrimination which omit to mention sexual minorities; inclusion,
the right to religion and rights of ethnic minorities (the view that the existing
definition of the state discriminates against religious and ethnic groups).

Elite: Do you think that individual rights are badly regulated?

    Can not assess
1HPRæHGDRFHQL


   


1H
No



   



'D
Yes
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

Among the rights of national minorities the political rights of national minori-
ties are particularly emphasized.
The respondents also mention as badly regulated the right to privacy (some
respondents claim it has been completely omitted), the right to information –
access to information (the freedom of information and the right to be informed),
the right to a fair trial, the right to work and social rights (social welfare).
The respondents once again emphasize the problems of implementation of
rights enshrined in the Constitution and some respondents (a lesser number)
think that the disregard of these rights rather than their bad definition is
actually the key problem.
Most citizens concur that human rights are not sufficiently respected in
Serbia. Only every fifth citizen maintains that human rights are observed (17%
that they are mostly observed and only 3% that they are fully observed).

Citizens: To what extent are human rights

M observed
S M inM Serbia
S today?


 1H]QDP
Does not know

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Yes, fully

 8JODYQRPGD
Mostly yes

,GDLQH
Both yes and no

 8JODYQRPQH
Mostly no

 8RSäWHQH
Not at all
HOLWD
 To what extent are citizens of Serbia acquainted with human rights en-
shrined in the Constitution?
The representatives of the elite are aware that the citizens of Serbia are
very little if at all acquainted with human rights.
A great majority of citizens, 72%, is not at all acquainted with human rights
guaranteed by the Constitution (7% think that there is no part of the Constitu-
tion dealing with human rights, 27% do not know whether it exists or not and
38% know that it exists, but do not know anything more than that). Only 23%
said they knew a little, 5% that they knew a lot and next to none said that they
were fully acquainted with the human rights guaranteed by the Constitution.

Elite: To your best knowledge, to what extent are citizens acquainted

with human rights guaranteed by the Constitution?
 NRMHJDUDQWXMH8VWDY"
 
  A0QRJR
lot


 
 3ULOLÿQR 
Considerably
 
 
 ,GDLQH
Both yes and no





 A0DOR
little


    8RSäWHQH
Not at all
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

Citizens: Does the Constitution contain a part dealing with human rights?
To what extent are you acquainted with constitutional provisions dealing
with human rights?
In the Constitution there is no part dealing with
 human rights

 I don’t know whether there is a part of the
 Constitution dealing with human rights

 I know that there is a part of the
 Constitution dealing with human rights but
don’t know anything else about it


I know a little

 I am considerably acquainted
HOLWD

Most citizens (73%) however think that it is very important that they be ac-
quainted with human rights guaranteed by the Constitution so as to be able
to exercise and protect these rights.

112
Citizens: How important is it that citizens are acquainted with human
rights guaranteed by the Constitution?
 VDOMXGVNLPSUDYLPDJDUDQWRYDQLP8VWDYRP"
I1H]QD
don’t know



It9HRPDMHYDæQRNDNRELJUDĀDQL]QDOLNRMDSUDYDLP
is very important, so that citizens know
what rights they have and how they can
LNDNRPRJXGDLK]DäWLWH
 protect them


It6DGDQLMHPQRJRYDæQR
is not so important now, but it will be
increasingly important as we progress
DOLýHELWLVYHYLäHäWREXGHPREOLæL(YURSVNRMXQLML
towards the European Union

 It8RSäWHQLMHYDæQRMHUX6UELMLLRQDNRQLNRQHSRäWXMH
is not important at all, because no one in
Serbia observes the Constitution anyway
Citizens
*UDĀDQL

Who is the most responsible for the fact that citizens are not well acquainted
with human rights guaranteed by the Constitution?
The citizens and the elite agree that the state is the most responsible for
the fact that citizens are not well acquainted with human rights guaranteed by
the Constitution, because it does not provide enough information to citizens.
This view is expressed by 52% of citizens and 53% of the elite.
Slightly less than one third of the elite and 27% of citizens think that the most
responsible are citizens themselves because they are not interested, while 27%
of the elite and 17% of citizens think that the most responsible are the media.
Among members of the elite there are differences in opinion: social elite tends
to hold the state as the most responsible (61%), citizens as less responsible (18%)
and the media as the least responsible (7%); intellectual elite considers citizens
the most responsible (50%), the state less responsible (42%) and the media the
least responsible (35%); political elite holds the state the most responsible (54%),
the media less responsible (37%) and citizens the least responsible (23%).

Who is the most responsible for the fact that citizens are not well acquainted
with human rights guaranteed by the Constitution? (multiple answers)


1H]QDP
Does not know


Media, because they do not
0HGLMLMHUQHSRVYHýXMX
 pay sufficient attention to the
  GRYROMQRSDæQMHWRMWHPL
subject
   
  Citizens themselves, because
6DPLJUDĀDQLMHUQLVX
  they are not interested to
]DLQWHUHVRYDQLGDVHEROMH
 
become better acquainted
XSR]QDMXVDVYRMLPSUDYLPD
with their rights
  


 'UæDYDYODVW
State/government, because
itMHUQHLQIRUPLäH
does not sufficiently inform
*UDĀDQL
Citizens (OLWD
Elite 3ROLWLÿNDHOLWD
Political elite Social elite Intellectual elite GRYROMQRJUDĀDQH
the citizens
'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD

113
What can be done to raise the level of information among citizens?
In order to improve the level of information about human rights guaranteed
by the Constitution among citizens, a majority of the elite proposes four types
of engagement:
1. Continual education, introducing a subject dealing with human rights
into the system of education (school) from the youngest age.
2. Communication – the state should inform the citizens, which is also the
obligation of the state under accepted EU conventions.
3. A greater engagement of the media, especially the Public Broadcasting
Service – guest appearances of human rights experts, making available infor-
mation on human rights to mass audiences and communicating on this topic
in languages of national minorities.
4. The engagement of civil society organizations – in synergy with the state
(local self-governments), the institution of the Ombudsman and the media.

Commenting the obligation of the state to inform the citizens about their
human rights, some representatives of the elite point out that the state is
very alert when it comes to informing citizens about their obligations (paying
taxes) but very passive when it comes to informing them about their rights.
In the opinion of some respondents, the state is concerned about human
rights only when it serves the purpose of daily politics. This creates a contra-
dictory message to citizens and a confusion rather than proper information
about human rights. The respondents often cite the example of banning the
Gay Parade and messages of politicians surrounding the event. In the opinion
of these respondents, rather than communicating with the citizens in this way,
the state should take a firm stance every time human rights are violated and
politicians should explain to all citizens how in concrete cases human rights
have been violated.
The respondents emphasize that it is important that local self-govern-
ments become engaged in providing information about human rights to citi-
zens. Some respondents also think that capacities of the Ombudsman in this
regard should be strengthened.
The representatives of the intellectual elite, in line with their attitude that
citizens themselves are the most responsible for their lack of information, as-
sign greater responsibility to citizens than to the state, media or civil society
organizations, holding them responsible for improving this state of affairs.

D6. The economic system

– The representatives of the elite and citizens agree that the Constitution
should provide free competition and anti-monopoly guarantees. This view is
shared by 70% of the elite and 53% of citizens.
– Representatives of the elite agree that the question of free market com-
petition and fight against monopolies is presently crucial for instigating the

114
development of Serbian economy. The differences exist in terms of whether
this should be regulated by the Constitution or by laws.
– A majority of representatives of the elite, namely 74%, think that the Con-
stitution does not fully guarantee social and economic rights of citizens and
69% agree that the Constitution should provide firmer guarantees to those
rights.
– The representatives of the elite are divided in the opinion whether there
is a difference between state and public property but a somewhat larger por-
tion (50%) think that there is no difference. Those who think that the difference
exists most often refer to the idea of control over the property i.e. the freedom
to dispose of the property: namely, state property is under direct control of the
state, which is a titular owner and it is alienable (the state can sell it or turn it
into private property), while public property is inalienable (cannot be sold or
privatized) because it does not have a titular owner – it belongs to no one, it
is public. The respondents who take this view often emphasize that the state
often disrespects the public property and usurps it, making decisions about
it in the name of citizens; thus, even though the difference between state and
public property certainly exists, it is not sufficiently respected.

Is it necessary to provide additional constitutional guarantees for free com-

petition and anti-monopoly policies in order to ensure sustainable develop-
ment?
There is agreement between representatives of the elite and citizens that
the Constitution should guarantee free competition and anti-monopoly poli-
cies. As many as 70% of the elite think it is necessary to provide additional
constitutional guarantees to these provisions and 53% of citizens think that
the Constitution should ensure free competition for both domestic and foreign
businessmen in a better way.

Elite: Is it necessary to provide additional constitutional guarantees to

free competition and anti-monopoly policies in order to ensure sustainable
development?


Does not know
1H]QD
  





1H
No
   



GD
Yes
7RWDO
Total 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite

115
Citizens: Some people think that the Constitution should ensure
better functioning of market economy by providing firmer guarantees
to free competition and fight against monopolies. What is your attitude
about it? M S
 1H]QD
Does not know


We should go back to self-management
7UHEDVHYUDWLWLVDPRXSUDYQR
socialism


Constitution should ensure free competition
8VWDY
for WUHED äWR
domestic andEROMH GD REHbusinessmen in a
foreign
]DGRPDýHL]DVWUDQHSULYUHG
better way


8VWDYWUHEDäWREROMHGDREH]
Constitution should ensure free competition
VDPR]DGRPDýHSULYUHGQLNH
only for domestic businessmen in a better way
*UDĀDQL
Citizens

The representatives of the elite agree that the question of free competition
and the fight against monopolies is presently crucial for instigating the deve-
lopment of Serbian economy; the differences only concern whether this should
be regulated by the Constitution or by normal legislation.
Those who think that it is not necessary to provide additional constitu-
tional guarantees for free competition and fight against monopolies explain
this by saying that it is not a matter of the Constitution but of laws and even
more of political will. These respondents maintain that political party elites
preserve the monopoly (primarily monopoly of tycoons) as a basic source of
corruption and financing of political parties.

Are social and economic rights of citizens sufficiently guaranteed by the Con-
stitution?
A majority of representatives of the elite, namely 74%, think that the Con-
stitution does not fully guarantee the social and economic rights of citizens
(63% think that social and economic rights of citizens are only partially guar-
anteed by the Constitution and 11% that they are not at all guaranteed by the
Constitution). The representatives of the elite who hold such views mostly
agree that the Constitution should provide firmer guarantees of these civil
rights.
Only every fourth representative of the elite thinks that social and economic
rights of citizens are fully guaranteed by the Constitution (33% of representa-
tives of political elite, 27% of intellectual elite and 14% of CSO).

116
Elite: Does the Constitution guarantee social and economic
rights of(OLWD'DOLVX8VWDYRPJDUDQWRYDQDVRFLMDOQDLHNRQRPVNDSUDYDJUDĀDQD"
citizens?
  
1H]QD
Does not know
   



 1H
No
 


Yes, partially
'RQHNOHGD


  

 'DXSRWSXQRVWL
Yes, fully
Total Political elite Social elite Intellectual elite

Most representatives of the elite who think that social and economic rights
are not fully guaranteed under the Constitution think that the Constitution
should provide firmer guarantees of those rights.

A part of the elite thinks that social and economic rights are not or are
only partially guaranteed by the Constitution. Should the Constitution
LOLXRSäWHQLVXJDUDQWRYDQD8VWDYRPLOLVDPRGRQHNOH
provide firmer guarantees of social and economic rights of citizens?
'DOLEL8VWDYWUHEDORGDGDÿYUäýHJDUDQFLMHVRFLMDOQLPLHNRQRPVNLPSUDYLPDJUDĀD
    1H]QD
Does not know

 



1H
No

  



'D
Yes
Total Political elite Social elite Intellectual elite

The dilemma whether the Constitution should provide firmer guarantees of

social and economic rights of citizens mostly have to do with the dilemma
whether the Constitution is abided by in practice, its declarative nature and
absence of accompanying laws and mechanisms that would ensure the full
observance of the Constitution. The respondents mostly emphasize that these
rights, as well as other human rights, are in practice violated every day with
impunity and express a doubt that firmer constitutional guarantees would
change the state of affairs.
Slightly fewer respondents think that these rights, as well as many other
rights, are defined by the Constitution too broadly and vaguely.

117
Is there a difference between state and public property?
The representatives of the elite are divided in the opinion whether there is a
difference between state and public property but a somewhat greater number
(50%) think that the difference does not exist. This opinion is predominant among
the intellectual elite (58%) and present among one half of the social elite and is
least represented among the political elite (43%).

Elite: In your opinion, is there a difference between state and public property?
 
  Does not know



   

No



   

Yes
Total Political elite Social elite Intellectual elite

Those who think that there is a difference between state and public property
give different explanations of this difference.
Most often the explanations concern the idea of control over property i.e.
the freedom of disposition with the property: state property is under direct
control of the state, has a titular owner and is alienable (can be sold or turned
into private property), while public property is inalienable (cannot be sold or
privatized) because it does not have a titular owner – is no one’s property, is
a public good (public property such as infrastructure, parks, monuments etc;
some respondents add energy and telecommunications).
The respondents who hold this view often emphasize that the state does
not respect public property, that it often usurps it and makes decisions about
it in the name of the citizens; even though the difference between state and
public property certainly exists, it is not respected in practice.
The other interpretation of the difference between state and public property
concerns the difference between state property and property of local self-gov-
ernments and the Autonomous Province. According to this interpretation, public
property is property of local self-governments and the Autonomous Province.
Finally, some respondents maintain that the difference, even though it ex-
ists (and should exist) is not clearly defined, which leaves room for the state
to behave in a centralized manner and usurp public property.
Some respondents emphasize that it is precisely in this regard that the
Constitution is vague and that it is one of the areas which should be changed
in a new Constitution.

118
Publishers: Open Society Foundation and Fabrika knjiga

Design: Olivera Batajić Sretenović

Lay out: Tanja Valjarević

Printing: Standard 2

ISBN 978-86-7718-134-5

Open Society Foundation: Kneginje Ljubice 14, Beograd

Web site: www.fosserbia.org Email: office@fosserbia.org
K
“Fabrika knjiga”: Knez Danilova 55a, 11000 Beograd
Telephone: +381 11 3224577 Web site: www.fabrikaknjiga.co.rs
CIP – Каталогизација у публикацији
Народна библиотека Србије, Београд

342.4(497.11)

FOR a Public Debate on Changing the Constitution! /

Jadranka Jelinčić and Dejan Ilić (eds) ; translated by Vanja Savić.
- Belgrade : Open Society Foundation : Fabrika knjiga, 2013
(Belgrade : Standard 2). - 118 str. : graf. prikazi, tabele ; 23 cm

Izv. stv. nasl.: Zašto je Srbiji potreban novi ustav?. –

Napomene i bibliografske reference uz tekst.

ISBN 978-86-7718-134-5 (FK)

a) Уставност - Србија b) Србија - Устав

2006 - Истраживање

COBISS.SR-ID 201106188