For and against Serbian constituent assembly*
The
Idea of Constituent Assembly in Post-Milosevic
Serbia
In order to understand political developments in
Serbia - particularly the attitude of political
elite toward the constitution - in the early years
of the 21st century, one should bear in mind that
the country has had two hundred years of constituent
fiascos. On this territory, whether it was called
Serbia or Yugoslavia, constitutions in the 19th
and 20th century were mostly disposable, adopted
to serve a purpose, and did not last long after
the (physical or political) death of their creators.
The darkest period of constitutionality in Serbia
was definitely the communism, from 1945 to 1990.
Beside the fact that constitutionalism was completely
dismissed as bourgeois and the legal system exposed
to deep bestialities (the nonsense like "dictatorship
of proletariat", "socially-owned property",
"self-governance of the working class",
to name only a few), members of the Communist Party
of Yugoslavia (League of Communists of Yugoslavia
later) could "take pride" in truly outstanding
"success": in the fight against bourgeois
"etatism" and "capitalism",
they managed to destroy any civilized legacy of
state and social organization; in the fight against
bourgeois "hegemony of Great Serbia" they
buried the idea of Yugoslav identity; combating
the bourgeois Yugoslav nation, they allowed for
abandonment of state-forming ambitions of semi-educated
nationalists in their own ranks (i.e. in the republics,
provinces) etc. This was yet another confirmation
of the old truth that people who claim to be intellectual
avant-garde of the society and fight their opponents
with organized machine of violence, are only trying
to hide their own limitations, prejudice and, ultimately,
primitivism. Slobodan Milosevic, as the particular
offspring of the communist system, advanced finalization
of farcical combination of Yugoslav identity and
communism with his infamous contributions: the final
validation that Serbian political elite was unable
to respond to Kardelj-like nationalist entropy otherwise
than by renewing the Great Serbia hegemony and linking
the constitutional and Kosovo issue in an explosive
mixture, which finally blasted the Second and the
Third Yugoslavia and left political chaos and insanity
in Serbia, which made rehabilitation of the idea
of constitutionalism an exceptionally difficult
task.
In the inglorious constitutional history, the idea
of constituent assembly sparkled only twice, but
was both times overshadowed by the simple fact that
constituent assemblies were not sovereign and that
they had to follow guidelines received from the
actual rulers. Therefore the Constituent Assembly
that adopted the Vidovdan Constitution on June 28,
|
1921, was constrained by
Krf Declaration, signed on July 20, 1917,
which was in turn backed by regent Aleksandar
Karadjordjevic and Serbian royal government
(its legitimacy supplied by support of the
Yugoslav Committee) and which proclaimed
that the new state will be a monarchy ruled
by Karadjordjevic dynasty. Even the Constituent
Assembly, which promulgated the Constitution
on January 31, 1946, did not dare to challenge
the decisions of the second AVNOJ session
held in Jajce, on November 29, 1943, nor
provisions of the Constituent Assembly Act
of the Interim National Assembly in 1945,
in which the real head of state (Josip Broz
Tito and CPY) had already said what they
believed mattered most for state order.
The idea of constituent assembly was by
then so thoroughly devoid of meaning, that
even the breakdown of communism in Serbia,
some forty years later, could not resuscitate
it. Milosevic's ideologist took care that
the idea was not rehabilitated even during
preparations for writing the 1990 Constitution,
celebrating "happening of the
|
|
|
|
Illustration from the
book Art klinika - Prva petoletka,
Novi Sad 2007
|
 |
people" in Serbia as alleged sitting of the
largest constituent assembly imaginable. One of
Serbia's leading constitutional lawyers Ratko Markovic
traversed constituent assembly with his rapt statement:
"Today the entire Serbia is one convent, a
spontaneous constituent assembly that is never dissolved,
and the people is directly writing its own constitution".
And when Milosevic's "convent" eventually
proclaimed the new constitution, it turned out that
this one, or the SR Yugoslavia's Constitution that
was adopted two years later, were not imagined as
watersheds in the history of Serbia, or Yugoslavia
- rather like constitutional facades, they sanctioned
autocracy of one man in ruins of the (still effective)
constitutional order of SFRY. All things considered,
it is clear that Serbia's new party political elite,
which toppled Slobodan Milosevic's autocratic regime
on October 5, 2000, found constitutional chaos unparalleled
in any former communist country in southeast Europe,
and in finding the way to overcome it, the new authorities
had no "national" historical experience
of a constituent assembly that would be of real
help.
What did exist in Serbia on October 5, 2000, was
only the enlightening idea of a constituent assembly.
Applied to the circumstances in the country at that
moment, this idea could be realized only through
a broader, pro-European constitutional and democratic
program that would encompass the four components:
1) A revolutionary break-up with the old regime.
First, it should have been openly declared that
on October 5, 2000 - thanks to complex cooperation
between several agents, from foreign intelligence
services, through Milosevic's disloyal partners
and leaders of Serbian opposition parties, to civil
society associations - Milosevic's tyranny was deposed
and a revolution (at that moment it seemed to be
Yugoslav) was started. As a consequence of this
choice, a quick, efficient and consequential dismantling
of the old regime (embodied not only in Slobodan
Milosevic, but also in his closest associates, who
allowed, enabled or even cooperated in his ruin,
with the intention to still retain their - mostly
non-transparent - positions of power in the new
regime) was supposed to start practically as of
October 6, 2000, already.
2) Calling elections for MPs of the constituent
assembly. Synchronously with dismantling of the
old regime, assumptions for swift elections for
members of the constituent assembly - at the end
of 2000 at the earliest, and by the end of 2001
at the latest - on the territory of the entire former
SR Yugoslavia.
3) Building the political will to adopt a pro-European
constitution. From the very beginning of the campaign
for election of members of the constituent assembly,
the public debate should have been focused on the
main issue: whether the new constitution should
provide for a swift and efficient accession of Yugoslavia
as a whole to the European Union, or, on the contrary,
to serve its (that is, Serbian and Montenegrin)
"Sonderweg". Pro-European political forces
in both republics would have to be gathered around
a program for adoption of a pro-European constitution
for the entire federation. The separation of the
two federal units had to be envisaged, but only
if the referendum on the new constitution failed
in one of them (which would lead to further work
on constituent assemblies in both new states).
4) A rational approach to Kosovo and Metohija issue.
In this, indubitably pro-European constitution for
federal Yugoslavia (or for independent Serbian state),
the issue of Kosovo and Metohija should have been
regulated only to the extent allowed by international
law. In tune with the choice to recognize primacy
of supranational legal orders (United Nations, as
well as the European Union), it would have to recognize
the international community's protectorate over
Kosovo and Metohija and present clearly the choice
for common European future of the people in the
region and both federal units (Serbia anyway).
Though it seemed at the beginning
that the pro-European constitutional-democratic
program did not have to be entirely utopist, or
that even some of its parts may become reality
relatively easy, political life in post-Milosevic
Yugoslavia, or Serbia, mercilessly made all these
components obsolete - the first one included.
A little over six years after Slobodan Milosevic
was overturned, he was not tried in Serbia as
a deposed tyrant, nor did the Hague tribunal establish
his guilt for the crimes he was accused of, while
promulgation of Serbian Constitution on November
8, 2006, marked the final defeat of the political
option trying to efficiently put a constitutional
end to revolutionary roads and open a perspective
for its (first complete?) rotation.
*
From: Aleksandar Molnar, Farewell to Enlightening
Idea of Constituent Assembly? On rotational
course of revolution in Serbia, 2000-2007, Edition
Reč, Fabrika knjiga, Belgrade 2008, p. 55–82.
The extract was edited by Republika.
|
