Friday, September 23, 2005

Myth: The 1989 amendments to Serbia’s constitution were illegal.

FACT: The 1989 amendments were perfectly legal, and consistent with both the constitution of Serbia and the constitution of Yugoslavia. Changes to Serbia’s constitution required the agreement of both autonomous provinces, and this was received in late March - on March 21st 1989 the Assembly of Vojvodina agreed, and the Assembly of Kosovo followed on March 23rd, with an overwhelming vote (by 175 out of 187 delegates present) in favour. The amendments were then passed on March 28th by the Assembly of Serbia. The correct constitutional practice was followed to the letter.

On June 27th 1990 the Constitutional Court of Kosovo, after a request by an Albanian academic and lawyer, decided to initiate a procedure to assess the constitutionality of the consent given on March 23rd 1989 to amendments to Serbia’s constitution, and a month later, on 27th July 1990, a draft decision was formed annulling the consent to the amendments. ( Some of Serbia and Milosevic’s detractors, including Mr. Nice, Milosevic’s prosecutor at the Hague Tribunal, claim that this shows that the consent to the amendments, and the amendments, were illegal.

There are a number of fatal flaws with this argument, however. For one thing, this decision was just a draft, and was never accepted or signed, so Kosovo’s Constitutional Court never actually declared the consent to the amendments illegal. Secondly, and more importantly, the Constitutional Court of Kosovo did not have the right to assess the constitutionality of changes to the constitution of the Republic of Serbia, which belonged to the Constitutional Courts of Serbia and Yugoslavia. The Constitutional Courts of Yugoslavia could not assess the legality of actions, only the legality of legal documents - in this case, the constitution of Serbia - and the Constitutional Court of Kosovo could not assess the legality of the constitution of a higher territorial unit, Serbia. ( So the decision, even if it had been accepted, wouldn’t have had any legal validity.

The Constitutional Court of Yugoslavia, which had an equal representation of all the Republics and Autonomous Provinces, in fact reviewed the legality of all the constitutions of the constituent units of Yugoslavia in 1989-90, and found almost all of them - including Serbia’s - to contain minor contraventions with the federal constitution, but found everything in the Serbian constitution relating to the provinces, that had been changed by the amendments earlier in the year, to be perfectly legal and consistent with the federal constitution. (


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