The Constitutional Development Of Serbia

The Constitutional Development Of Serbia Presented by: Prof. Dr. Petrov Date: 31 August 2023 Serbian Constitutional History - Timeline - Ottoman rule - 1804. • - 1878. • - Socialist Federal Republic of Yugoslavia 1992 • - Kingdom of Yugoslavia 1945 • - Kingdom of Serbia 1918. • - Principality of Serbia Federal Republic of Yugoslavia The Republic of Serbia "Sretenje (Candlemas) Constitution" – 1835 - The first Serbian constitution - Liberal, advanced, rich catalogue of human rights - "Stillborn" - in force for only 6 weeks - More of a symbol than a sincere normative expression "Turkish Constitution" – 1838 - Imposed by Ottoman rule - Overall less liberal - Human rights, judicial independence - Abolition of feudal remains - Initially written by Serbian scholar, but modified beyond recognition "Regent's Constitution" – 1869 - Constitutional monarchy - "Living" constitution - Moderate limitations of Prince's power - Limited political rights "Radical's Constitution" – 1888/1903 - Often qualified as "the best Serbian constitution ever" - According to its normative characteristics, it is a fine representative example of liberaldemocratic constitutionality. - Too experimental, unadjusted and even somewhat delusional. April Constitution – 1901 - Imposed by the King Alexander Obrenovic - Authoritarian constitution "Vidovdan (St. Vitus day) Constitution" – 1921 - Constitution of the newly formed Kingdom of Yugoslavia (KSHS) - Intended to give birth to the new national concept: Yugoslavism - Was deeply rooted in Serbian constitutionality from before 1914, though within all the circumstances of the newly formed, First Yugoslav state. September Constitution – 1931 - Imposed (by the King Alexander Karadjordjevic) - Authoritarian constitution Serbian Constitution of 1990 - The return to the liberal-democratic constitutionality - Re-introduction of the multi-party system - Semi-presidential system - Free market and economy - List of human rights - Written with the anticipation of the SFRJ dissolution Serbian Constitution of 2006 - In force, with the Amendments of 2022 - In large part based on the 1990 Constitution - Some improvements, also many flaws - Criticized by the Venice Commission Periodization And Different Criteria - According to distinctive periods of modern world constitutionality - Periodization of the constitutional history of Serbia in the works of Serbian eminent constitutional scholars - Periodization from the standpoint of state sovereignty - From the standpoint of constitutional identity Concept of Constitutional Identity - Uncertainty and vagueness of the concept. - Constitutional identity is the 'heart' of the constitution, its essence, which cannot be changed or is hard to change. - There should be no concurrence between the national and the European constitutional identity. The European principles and values are to be interpreted and implemented in "the national way" - in accordance with national legal and political culture and circumstances. "Unity in diversity". - Serbian Constitution of 2006 (Art. 1): „The Republic of Serbia is a state of Serbian people and all citizens who live in it, based on the rule of law and social justice, principles of civil democracy, human and minority rights and freedoms, and commitment to European principles and values" Four Milestones of Serbian Constitutional Identity - 1) The Constitution of 1835 ("Sretenje Constitution") - the first "real" constitution (rather that just an "act of a constitutional character"). - 2) The Constitution of 1869 ("Regent's Constitution") - contained a whole series of solutions that could still stand almost unchanged, essentially and stylistically, in some contemporary Serbian constitution. - 3) The Constitution of 1888 ("Radical's Constitution") - full of 'traces' necessary for conceptualizing the modern constitutional identity of Serbia - 4) The Constitution of 1990 - adopted with a definite tendency to finally resolve the question of constitutional identity. It has defined fundamental constitutional principles and values that still shape the Serbian constitutional framework today. Periodization From The Standpoint Of Constitutional Identity - I - The era of laying the constitutional foundations - II - The era of authentic constitutionalism - III - The era of declarative parliamentarism - IV - The era of non-independent constitutionalism of the authoritarian type - V - The era of non-independent constitutionalism of the specific socialist type - VI - The era of finding a new authentic constitutionality on the heritage of the European constitutional heritage Constitutional-Identity Issues That Remain: - 1) to find a more balanced system of division of power; - 2) determine realistic scope of protection of human rights and freedoms, according to European standards; - 3) determine the right meeting point ("sweet spot") between parliamentarism and presidentialism; - 4) to strategically resolve the Kosovo and Metohija political issue by organizing sui generis system of its "sovereign rights", on the principle of territorial decentralization (in which territoriality as a classic component of sovereignty will be put in the background in relation to human rights protection as basic prerequisite for the rule of law).