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Constituion - Serbia PDF
Constituion - Serbia PDF
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?
007
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.
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.
009
So why is there no public debate on changing the Constitution?
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.
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).
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.
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.
020
ALEKSANDAR MOLNAR
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
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.
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.
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.
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.
034
LJUBOMIR MADŽAR
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.
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.
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.
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.
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
of Economic Sciences and the Economic Faculty of the University of Belgrade.
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-
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
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
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
057
2) The elite
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
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.
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.
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.
– 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.
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.
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
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
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
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.
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.
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.
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
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.
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).
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.
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.
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
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.
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
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.
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
%
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
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.
080
D) ATTITUDE TOWARDS SPECIFIC CONSTITUTIONAL PROVISIONS
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.
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.
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?
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.
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?
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.
'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).
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.
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.
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
Yes
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.
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
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
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
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
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.
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
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?
No
Yes
Elite Political elite Social elite Intellectual elite
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.
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.
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.
No
Yes
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.
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%).
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.
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.
'D
Yes
(OLWD
Elite 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite
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
1DL]ERUXWLFDOLVXSROLWLÿDULLSROLWLÿNHVWUDQN
73% ÿLPHMH8VWDYRPJDUDQWRYDQDQH]DYLVQRVWVX
The re-election was influenced by politicians
GRYHGHQDXSLWDQMH
and political parties, which јеopardized
constitutionally guaranteed independence
of the judiciary
,]ERUre-election
The VXGLMD L]YUäHQ
wasMH LVNOMXÿLYR QD RVQRYXon the
made exclusively
16%
RVSRVREOMHQRVWLLSURIHVLRQDOQRVWLXSUHWKRGQ
basis of expertise, capability and professionality
Citizens of their previous work
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
No, I am not aware of the existence
1HQLVDP]QDRODGDSRVWRMHWDNYLRUJDQ
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
'DXSRWSXQRVWL
Yes, fully
8JODYQRPGD
Mostly yes
,GDLQH
Both no
yes and
8JODYQRPQH
Mostly no
8RSäWHQH
Not at all
*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.
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
No constitutional
1H GRYROMQR MH äWRtext
MH WRsuffices butX
QDYHGHQR
implementation should be enabled through
DVSURYRĀHQMHWUHEDGDVHREH]EHGL]DNRQ
laws
6YHMHGQRMH
It is all the same
Yes, even if the Constitution is not observed,
'DPDNDULGDVH8VWDYQHSRäWXMHYDæQR
it is important to have such text in
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%).
'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
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.
'D
Yes
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.
'D
Yes
Total
7RWDO 3ROLWLÿNDHOLWD
Political elite 'UXäWYHQDHOLWD,QWHOHNWXDOQDHOLWD
Social elite Intellectual elite
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
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.
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.
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).
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: 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.
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.
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
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
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
Printing: Standard 2
ISBN 978-86-7718-134-5
342.4(497.11)
COBISS.SR-ID 201106188