Serbia's Constitution Breeds Dangerous Illusions

Two prominent scholars with contrasting ideas about the way to bring a constitution in post-communist and post-socialist countries, counterpoised their arguments whether when a country reaches a milestone, like breaking up with the past, a constituent assembly (the viewpoint Molnar' supports) or a regular legislature (idea advocated by Dimitrijevic) should promulgate a constitution. Their joint presentation of the latter's book turned into a dialogue and overview of the authors' opinions concerning consequences of Serbia's 2006 Constitution

The constitution was not adopted at a constituent assembly. The idea of continuity won, a third outcome which neither Nenad Dimitrijevic nor I advocated, Aleksandar Molnar said.
The very idea of continuity, which was problematic from the very start in the situation when we had international protectorate in Kosovo, turned into an insuperable barrier and what we got in the end was, if not a caricature of constitutional continuity, then definitely a hybrid. As regards political actors, the constitution was written by forces that were in power until 5 October 2005, joined by fractions of the bloc that defeated Milosevic.
As regards enlightened elite and its role in creating the constitution, Aleksandar Molnar said that the idea of enlightened elite entails sufficient knowledge of a society that is constituted and the environment in which the society is to continue to exist, in view of all the conflicts that are real.
The elite should represent the basic value, which is pacification. The key thing to me is pacification of as many problems as possible, because proneness to utopist thinking around here is very dangerous.
Molnar recalled the Kosovo problem and added that in the early 80's the problem could have been resolved much more peacefully, if relevant actors gathered properly, if discussion about constitution was organized and if options to satisfy both sides were deliberated. Molnar recalled that he insisted in his book on the context of the European Union, which was born from the sense that borders and relations between nations in Europe were highly volatile. The borders were disputable not only in the east, but in the west also, and the European Union was born from that very impulse - to resolve the conflicts.
Nenad Dimitrijevic said that Serbia needs a constitution to finally overcome history and become a normal political society. The European Union was generated from the need to surmount the continuity of national hatred that resulted in the two world wars and out of the awareness of German and French political leaders to put an end to it by shifting the tension from the relations between nations, while not forgetting what had happened. The series of small steps in establishing the EU were not envisaged as pacification of things that should not be forgotten. Pacification does not mean oblivion, but stepping out from the terrifying context in which we are constantly forced to wage wars and kill each other.

Speaking about Nenad Dimitrijevic's book, Aleksandar Molnar highlighted the author's main messages: in writing about constitutions of post-socialist countries, Dimitrijevic remarks that constituent assembly is excessively burdened with the question of (quasi) continuity of the old regime. The author believes that in formulating a constitution,

constitutional courts should be the real designers of basic norms and interpreters of crucial values of a society. This was the case with Poland and Hungary, whose constitutions were marked by uncompromised breakup with the past. Discussing Dimitrijevic's view of Serbian constitution, Molnar pointed to Dimitrijevic's texts Patriots Writing a Constitution and Serbia in Shackles of Bad Past. In the texts Dimitrijevic answers the question whether a constitution in democratic liberal tradition can be created in Serbia in the situation where the bad past has not been overcome. The author is skeptical with regard to expectations that Serbia will get an appropriate constitution, precisely because its failure in outgrowing the bad past, Molnar concluded. Nenad Dimitrijevic said that Molnar's book is "a cultural achievement which many societies with advanced culture cannot boast of" and that the book "exceeds Serbian culture and reintegrates early Enlightenment, through liberalism to Serbian political practice". Molnar views the constituent assembly as the best condition to
		Candle made by a nun

meet the legitimate expectation of every individual to live in harmony with imperatives of the mind and be included in creation of the society, Dimitrijevic said.
He also highlighted Molnar's view that in the tradition of enlightenment, constitution is thefounding act of legislation and not a matter of unwritten customs". This leads us to another opinion of his: "The new Serbian elite had to take a position regarding a key issue: whether its main guiding principle will be enlightening pacification of internal and foreign circumstances or a 'Kosovo ethics'. If it chose the latter option, it would have to decide if it would consequently be prepared to risk a new ethnic cleansing, Serbia's European prospects and eventually its independence…"
Going back to the central issue - adopting a constitution on the principle of constitutional continuity (in the parliament) when all state agencies are functioning, or at the constituent assembly, Nenad Dimitrijevic conceded that constitutional continuity is not a panacea, but he expressed his doubts concerning democratic adoption of constitution in a situation where no necessary democratic constraints exist, i.e. when constituent assembly is the only functioning body. Aleksandar Molnar said that this dilemma was the summary of the discussion, reducing it to the question whether there can be freedom without risk. If you opt for constituent assembly you act in the spirit of enlightenment, opening in a way the door to freedom (like in the 18th century France), but the result is not guaranteed. On the other hand, any meticulously prepared mechanisms and Serbia's experience concerning constitutions adopted without a constituent assembly did not warrant a successful solution. The guarantee is enlightened political elite, and it is the key to success. You can secure all mechanisms, but if you lack the final ingredient - enlightened political elite - freedom transmutes into its opposite, Molnar concluded.

	Olivija Rusovac