Serbian Constitution undergoes criticism

Serbian Constitution undergoes criticism

“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.