From the perspective of the present and future constitutional law system in Serbia

More than one half of the Constitution of 2006 is devoted to the subject of human rights. Ideally, the incorporation of human rights guarantees in the supreme legal act of a political community asserts the principle of constitutional democracy and directly expresses the view that the relations in the community are governed by the principle of equal freedom of every one of its members.

A legal-political community is born and exists on the basis of the common and reciprocal recognition by the community members that they all have equal rights and freedoms. The act of recognition is inscribed in its basic form in the constitutional document because this document is instrumental in the legal establishment of the political community.

Pursuant to this, a series of legal rules on the guarantees of rights and freedoms is incorporated in a constitution. They are accompanied by provisions on the organisation of the public authorities, i.e. the bodies duty-bound to secure the respect and protection of human rights.

Conversely, the pursuit of alternative models of the legal and state order, grounded in the will of the ruler or metaphysically conditioned divine will, natural law and the like, involves the application of a whole series of exclusive principles reflecting inevitably the relationship of predominance between the political community members. The result is a political community in which some of its members are freer than others.

To be a part of the privileged categories secures “a surplus of freedom” for those sharing the same ethnic origin, nationality, language, colour of their skin, social and economic standing, membership in a political party or a religious organization, state of their health, sex, sexual orientation, age etc. The others, those who do not belong to the privileged categories, are in for “a deficit of freedom”.

These two principal types of the political community factually coexist in present-day time. In a certain number of states the constitutional democracy system has evolved or is evolving successfully. A system which does not secure equal freedom for the members of the community still reigns in others.

If one assumes that the chief objective of the political reforms in Serbia is the creation of an effective system of constitutional democracy and that this process is still under way, the question arises as to how much has the constitution now in force contributed to the accomplishment of the chief objective. If one concludes that a constitutional revision could remedy the current unsatisfactory state of affairs, the question arises as to which direction should the intervention in the future constitutional text take in order to expedite the formation of the constitutional democracy.

The legal-political orientation of the Constitution of 2006 and its defects

The introductory sentence of the first article in the Constitution defining Serbia in an early-romanticist manner as a state which “belongs” equally to the Serbian people and all citizens living in it is politically profoundly insincere. As it occupies the first place in the order of constitutional norms, it grounds the country’s legal system in mutually conflicting principles.

On the one hand, it uses the words ‘all citizens’ and further down in the first article the words ‘democracy’ and ‘human and minority rights and freedoms’ suggestive of the application of the all-inclusive principle of constitutional democracy. On the other, the political community is defined as the state of the Serbian people securing the application of one of the most effective exclusive principles of a nation-state.

Some 25 years ago the nation-state idea on the domestic political stage took the place of the idea of the working class state inviolable hitherto. The nationalist principle, being politically superior, in the country’s historical evolution in the new century offers a solid ground for the construction of a specific edifice of a whole series of other principles of predominance, notably those associated with the racial, ethnic, religious, political, i.e. party, sexual, gender and sexual identity.

However, as it has been said, the relations among members of the community are governed either by the principle of their equal freedom or by the principle of domination of some over the others, but never by both these principles at the same time. If it is nonetheless insisted that the two principles be applied in parallel, this is done because of political hesitation regarding the ideological purposefulness, reach and practical consequences of the application of either of them separately.

Politically speaking, bearing in mind the insufficiently developed legal culture of the community, it seems justified to fear that the convincingly demonstrated vacillation of the constitution maker regarding the application of the principle of constitutional democracy could induce a persistent doubt about the concept of human rights, unless, of course, one concludes that this indecision is, in fact, due to the tradition-rooted doubt about human rights. Legally speaking, it appears that the basic insincerity of the constitution maker at the time when the text was written could also generate the lack of concern for individual rules of the constitutional law system bearing on the respect and protection of human rights.

The constitutional provisions on the rights and freedoms give substance to the fundamental legal-systemic framework of human rights law. They answer the question about the list, i.e. the catalogue of rights and freedoms, their holders, i.e. beneficiaries and the persons bound to respect them, i.e. the addresses of the obligations.

As for the catalogue of human rights, the constitution maker’s carelessness is evident in the prescription of principled rules and rules associated with individual rights and freedoms. The constitutional text, for instance, does not feature a rule about non-enumerated rights. This rule whose purpose is to protect man’s freedom in its totality and which originated in the Ninth Amendment of the US Constitution as early as the late 18th century and was included in the preceding constitution of Serbia, says that is legally inadmissible to restrict or deny rights and freedoms on the pretext that they have not been inscribed in the human rights catalogue.

Individual rights and freedoms have not been included in the constitutional catalogue because they slipped the memory of the constitution maker as he was writing the list of human rights. This is why the prohibition of debt servitude – a legal guarantee distinguishing the modern era in the human history – and the guarantee of the right to privacy – an omnipotent right of paramount significance if the legal system of the protection of human freedom is to function effectively – are missing from the Constitution.

In view of the fact that these two guarantees featured in the earlier constitutions of Serbia and the federal state it was a part of, the constitution maker’s forgetfulness cannot but find its reflection in the application of the principled rule on the prohibition to lower the achieved level in the respect and protection of human rights. Although it is one of the fundamental rules in human rights law explicitly stated in the Constitution of 2006, the constitution maker himself breached it very crudely, perhaps because he did not take it seriously enough.

Other shortcomings of the constitutional provisions on individual rights and freedoms also strike the eye. For instance, the right to a fair trial associated with decision-making in civil and criminal proceedings is wrongly systematised in the constitutional text as it is included in provisions which relate only to a narrower category of rights guaranteed in the procedure concerning the investigation of criminal responsibility.

Or, a rule on the restriction of rights is cooked up and lacks legal sense because it says that the freedom of thought, conscience and religion and the freedom of opinion and expression may be restricted if it is necessary in a democratic society in order, among other things, to protect the “morality of the democratic society”. Likewise, the rule on the restriction of human rights in a state of emergency is stripped of sense because a broad circle of those who cannot enjoy this property is included in the category of so-called “absolute rights” which may not be restricted.

With regard to the rules determining the beneficiaries and addressees of individual rights and freedoms, the Constitution also suffers from numerous shortcomings. The constitution maker did not deem it necessary when wording the rules on the prohibition of discrimination to mention sexual minorities even though these groups are very often and to a significant extent exposed to discriminatory treatment.

The right to marriage in the constitutional text is associated with a heterosexual community of life even though this restrictive element was absent in the guarantee of the same type featuring in the preceding constitutional document. The freedom to decide whether to give birth to a child, i.e. the right to terminate pregnancy is wrongly guaranteed to “everyone” rather than to women alone.

The enjoyment of freedom to assemble in open and closed spaces is guaranteed only to the country’s citizens. The general rule on the status of foreign nationals as beneficiaries of rights and freedoms suffers any way from a fundamental legal defect as it can be interpreted in a number of legally convincing ways.

Neither it is easy to arrive at a clear interpretation of the rule on the addressees of the legal guarantees of the right to legal aid. Principled rules on the addressees are also missing. Although it is possible to deduce the status of the addressees from individual provisions, the constitutional text does not take over the rules from the preceding constitution stipulating that the obligation to respect the guarantees of human rights is incumbent upon the public authorities and all other natural and legal persons.

Finally, even the rules on the relationship of human rights law authorities may be interpreted in different ways, depending on whether the priority is accorded to the formal primacy of constitutional provisions over the provisions in international documents or to the rule which says that human rights rules from other authorities of law are absorbed by the constitutional system, and, among other things, that the Constitution guarantees and enables direct application of the rights and freedoms arising from international law.

Recommendations on possible changes of the constitutional rules on human rights

The abovementioned and other deficiencies in the constitutional text relative to human rights can be removed by constitutional revision. If one starts from the assumption that the purpose of the new constitutional provisions on the rights and freedoms should be the creation of a legal-political environment favouring an effective application of the principle of constitutional democracy, it seems that in their wording particular note should be made of three requirements.

Firstly, the future constitution should secure for itself the role of an uncompromising political advocate of the principleof constitutional democracy.

The principal and joint message of the constitutional provisions on human rights and the organisation of government should not provoke doubts about the principles underlying the political community. If one wishes to secure an equal sphere of freedom for every member of the political community with the help of a new constitutional document, then not a single constitutional rule should be in opposition to this uniform approach. In this sense, the text of the constitution ought to be rid of the current ballast of antinomic principles.

The categorical renouncement of the nation-state concept would pave the way for the regulation of the political community outside the domination relationships between its members. The legitimate interests of the majority and minority groups whose self-identification is based on national, ethnic, religious, social economic, political, sexual, gender and other properties could be thus fully satisfied and itwould not damage the interests of others.

Secondly, the work involving the drafting of new constitutional provisions should be closely tied to the principle of constitutional democracy, particularly with regard to the political participation of all parties concerned.

To secure the satisfaction of the legitimate interests of the members of the political community, the procedure concerning the wording of new constitutional provisions should involve all the subjects concerned or affected by them. The devastating experience with the Constitution of 2006, written in secrecy and followed by its adoption without any debate about the contents of individual constitutional provisions, may not be repeated.

The activation of the mechanisms of political participation in the drafting of a new constitutional document would make it possible to articulate substantially diverse and often highly opposed interests of the members of the political community and their mutual harmonisation. Although it would be no mean feat, the course embarked upon to arrive at the social consensus on the contents of new rules would guarantee high quality and long life of the future constitutional solutions.

Thirdly, new constitutional rules on human rights should be free of positive law errors rendering much more difficult the application of the principle of constitutional democracy.

If all parties concerned agree with the contents of constitutional rules, then these rules by their nature cannot be seen as wrong. Therefore, the mechanisms of the political participation in the drafting of a new constitution could serve to identify and avoid mistakes occurred when the constitutional text currently in force was written.

As it has already been shown, one batch of these mistakes is of a legal-methodological nature and they are easy to rectify. Another batch of mistakes is of a legal-ideological nature precisely because they are due to the application of special exclusive principles of domination in the relationships between the community members. Their amendment presumes unconditional commitment of the future constitution maker to the principle of constitutional democracy and dealing with these mistakes through democratic participative mechanisms.

Translated by Mirka Jankovic

Pešč, 05.09.2014.