BELGRADE -- The Constitution is lacking in quality when compared with the versions the Opposition drafted during Milošević’s rule.
Source: B92, Beta
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“Against this background of a hasty adoption it is particularly surprising that the Constitution is extremely rigid and that large parts are very difficult to amend,” the report said.
The Venice Commission, however, assessed that in general many aspects of this Constitution meet European standards, even though there were certain provisions that fell well below those standards and those that were unclear or contradictory due to the hasty drafting.
The Commission assessed of the Constitution’s Preamble, which defines Kosovo as an integral part of the territory of Serbia enjoying the status of substantial autonomy, stressing it was not up to them to interfere with the process designed to determine Kosovo’s future status:
“In contrast with what the preamble announces, the Constitution itself does not at all guarantee substantial autonomy to Kosovo, for it entirely depends on the willingness of the National Assembly of the Republic of Serbia whether self-government will be realized or not,” the Commission remarked.
The Commission also censured the part of the Constitution that states that “parliamentary deputies irrevocably put their terms of office at the disposal of the political party they belong to.”
“It seems that it intends to tie the deputy to the party position on all matters at all times. This is a serious violation of the freedom of a deputy, concentrating excessive power in the hands of the party leaderships,” the report said.
The Venice Commission also criticized the excessive role of the National Assembly in judicial appointments, adding “it reinforced the risk of a judicial system within which all positions are divided among political parties.”
Prof Vesna Rakić-Vodinelić from the Institute of Comparative Law told B92 that the gravest remarks the Venice Commission made were related to Constitutional provisions regulating human rights, judiciary, and relations between domestic and international law, in addition to the preamble's discussion of Kosovo.
“The Constitution gives too much freedom to the legislator when it comes to regulating human rights practises, including the possibility of their restriction, which is not allowed,” she said.
Speaking of the Commission’s criticism of the relations between domestic and international law, she said that the report maintained that the domestic law couldn't always be given supremacy over the international law, which meant the Constitution would have to be amended.
“The Constitution enables the Constitutional Court to deprive ratified international treaties of their internal legal force when they do not comply with the Constitution,” the Commission noted, adding the following:
“In that case the Serbian State, in order not to violate its international obligations deriving from ratified treaties, would either have to amend the Constitution – which will not always be possible in view of the complex procedure provided for in the Constitution, or denounce the treaty or withdraw from it, if the possibility to do so is provided for in the treaty itself.”
The Venice Commission is an advisory body of the Council of Europe (CoE). It provided the assessment of the Serbian Constitution acting on the request of CoE Parliamentary Assembly’s Monitoring Committee.
The problem with the Serbian Constitution, so far as I can gather, it that, like the even more absurd European one, it's too long and too boring.
The American Constitution, even including its amendments, is short, inspiring and flexible. It is based on natural law. The British Constitution is even more remarkable because it goes back almost a thousand years and cannot be put onto a single document. It is the result of a natural and organic progression and is created, like English law in general, by many interractions between people rather than paternal and dictatorial pronouncements by governments.
In fact, it is quite possible to create a workable constitution with just a few words - 'people are free to do exactly as they please so long as they do not infringe upon the freedom of others to do likewise'. Anything else beyond that threatens to become state interference, which always ends in tears.
(T Payne, 14 April 2007 15:15)
Serbian Constitution: what an impressive "masterpiece" of intentional defects! No wonder, what can you expect?
It was "commissioned", put together by "democratic minded" people of Kostunica.
It just shows how far Serbia is behind the other europeen countries.
(Joe, 14 April 2007 17:14)
joe, you don´t know what you´re talking about, it was never so obvious as it is in your last comment here...
TPayne, the difference can be seen simply in the two different law-systems that are being used in the Anglo-Saxon, ( english-speaking world ) and the continental ( european ) law systems, that are based on socalled codifications ( instead of socalled "common law"-based legal systems of the US and UK and other countries influenced by them ).
the US-american constitution is in fact quite short, but then if you look upon it more thourougly it needs a lot of amendments...so that rather qualifies the advantages, if you bear in mind that much of what is codified in continental constitutions, had to be inserted in the aftermath ( after some law-suits ) in the anglo-american world... so, it can´t really be said, that those US, or UK constitutions are somehow better...it´s just the opposite, I guess.
and what I would like to emphasize: Constitution are not there to be "entertainment",...so, if the serbian constitution is boring in your eyes...that´s fine, but that doesn´t say a lot about it´s legal qualities.
on this occasion, ( this b92-article about the serbian constitution ) one can very nicely see, how simple the Albanians are arguing here... what is serbian must be bad!
maybe that´s the reason why the western-"democracies" only want to give them supervised independence...since they seem to be far from any sound consideration in regard of any thing that is related to Serbia.
go on Joe, entertain us a little bit with your knowledge about juristic matters... especially for me it´s a pleasure!
(jovan, 15 April 2007 00:17)
I had written a long opinion stating my views on the serbian constitution and I see that the moderator chose not to publish it. I do not understand the serbian moderation rules. Many times I have seen here posts that should have not been published, and I have also heard complaints from posters questionning the moderator's rules.
I wonder if the moderators could explain why they put aside harmless posts. b
(Victor, 15 April 2007 14:57)
but, in order to give you some info: there is at least on thing in common between Putin and Koštunica: they both are lawyers, Putin even graduated in economics too.
(jovan, 15 April 2007 23:38)