Friday, September 23, 2005

Serbia's Constitutional Amendments and the Autonomous Provinces

Below is a detailed explanation of what the five amendments to Serbia's constitution that pertained to the autonomous provinces were actually about, and what they changed:

Amendment 29 concerned the mechanism for ensuring that the provincial constitutions were in line with the republican constitution, which they legally had to be. Under the 1974 constitution the provinces had the power to amend and change their constitutions without Serbia having any say, but there was no mechanism for ensuring that these constitutions did not illegally violate the republican constitution. Under Article 402 of the 1974 constitution the Constitutional Court of Serbia was supposed to inform the Assembly of Serbia, which was then to inform the provincial assemblies, if it found the provincial constitutions to contravene the republican constitution. Under the 1974 constitution, however, the provincial assemblies were then to decide for themselves whether to eliminate what was unconstitutional and illegal in their constitutions, and Article 402 said nothing about what would happen if the unconstitutional provisions remained. The new Amendment 29 filled that hole - if the provincial assemblies did not remove any contraventions within a year of being informed of them, then the contravening provisions automatically ceased to be applied. The provinces were thus given a one year tolerance of unconstitutionality in their constitutions.

According to Article 300 of the 1974 constitution of Serbia, there were certain areas where laws were supposed to be passed and applied uniformly for the whole of the Republic of Serbia. The separatist-leaning provincial governments had often sabotaged laws that pertained to the whole of the Republic by simply not implementing them, however, and under the 1974 constitution there was no way of making them apply or enforce the republic-wide laws that that very constitution said they were supposed to. Amendment 31 therefore gave republican bodies certain authority in the provinces for enforcing laws that applied to the whole of the republic. The provinces still retained full authority and autonomy regarding the passing of their own laws, and their autonomy was in no way affected there, the republican bodies just received the authority necessary to ensure that laws that applied to the whole of the republic were actually implemented by the provincial governments, and not ignored or sabotaged.


What it was that was regulated uniformly throughout the whole of the republic of Serbia was explained in Amendment 33: the equal use of languages, protection against pollution of the land, social policy and laws (relating to marriage and so on), property rights, and a number of other things which naturally have to be uniform across a state. What Amendment 33 specified as uniform across the republic was in fact the same as what had been specified as uniform across the republic in the 1974 constitution, only now, with Amendment 31, such uniform regulations would actually be implemented.


Amendment 43 restored an important state function to Serbia - that of protecting the constitutional order in times of crisis. The Presidency of Serbia was now to be in charge of state security when the constitutional order was threatened, and Amendment 43 regulated what the Presidency could do in terms of protecting the state order in times of crisis, including, if deemed necessary, empowering republican organs to take over the management of crucial areas across the whole of the republic. Article 296 of the 1974 constitution had said that in the area of national defence when there was an emergency the republican authorities could communicate directly with municipal authorities, bypassing the provincial organs (
http://www.milosevic-trial.org/trial/2004-12-02.htm), but under that constitution Serbia had basically lost all its state powers regarding national defence and security. This was shown most dramatically in 1981, when Kosovo erupted in Albanian separatist riots, threatening the security and constitutional order of the Republic of Serbia, but the police forces of said Republic had to wait for days for permission to enter Kosovo and restore order. Amendment 43 made sure that such a bizarre and dangerous situation would not be repeated, by restoring to Serbia the essential state function of safeguarding national defence and security - matters which are clearly of absolute importance to the whole of the Republic - in times of crisis. The provinces, lest there be any confusion, still had absolute autonomy in this area in normal times, retaining their own autonomous and independent police and internal security forces, but now when the constitutional order and security of the Republic was threatened the Republic could respond as a unified whole.

Amendment 47 dealt with another important matter: how the constitution of Serbia could be changed. Under the 1974 constitution a paradoxical situation had been created whereby the Republic of Serbia had no say over what went on its autonomous provinces, and said provinces could change their constitutions at will, but those provinces effectively had a veto power over changes to the constitution of the Republic of Serbia. The lower territorial unit had more powers here than the higher territorial unit - the tail was wagging the dog. This was clearly a paradoxical situation, and Amendment 47 set out to fix it in a fair and just manner. The effective veto power of the provinces was substituted for a complex procedure for changing the constitution of Serbia. If consensus was not achieved between the republican and provincial assemblies over amendments to the republican constitution, then the matter would be postponed for six months, during which the Assembly of Serbia could not effect change. If consensus was still not reached after that period, and one or more of the provinces still objected, then the changes could be effected only through a democratic referendum. (http://www.milosevic-trial.org/trial/2004-12-01.htm) The provinces thus still retained major power regarding changes to the republican constitution, just losing the power of total veto. Point 2 of Amendment 47, it should also be noted, explicitly stated that "Changes to the constitution of Serbia cannot alter the position, rights, and duties of the autonomous provinces established by the constitution of the SFRY”, so Serbia could in no way abolish their autonomy now they had lost veto power.

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