The Foundation for Liberal Practical Politics emphasizes the position that, by limiting the process of amending the Constitution to the area of the judiciary and the issue of the election of judges and prosecutors, an opportunity was missed for a thorough and comprehensive reform of the highest legal act.
It is clear that the constitutional change concerning the legal system is necessary, as one of the requirements for adaptation within the framework of European integration. However, since it was already mandatory to carry out the entire process, including a citizens’ referendum, this moment should have been used for much broader changes, after which the Constitution would truly represent a framework for building a civic, democratic, and European society.
One of the most important functions of a state’s Constitution is to direct the course in which it wants to move and to symbolize the values it aspires to. In this sense, Serbia must first complete its identity as a civic state, at the center of whose attention are the individual, their rights and freedoms. Also, through various provisions, strategic priorities should be seen more clearly and precisely: belonging to the Western political space and system of values, European integration, cooperation with neighbors in the territory of the former Yugoslavia.
When it comes to human rights, there is significant room for improvement in constitutional matters regarding equality before the law. We highlight the need for the state to treat all people living in it equally, without taking national, religious, and linguistic affiliation as a criterion. Fully equal rights must also be enabled regardless of different life choices and lifestyles, which include sexual and gender orientation. It is the task of all societal actors to fight discrimination based on gender, age, property status, mental and physical disability, and political or other beliefs, but the impression is that the roots of the problem there can hardly be sought in the highest legal act.
With regard to territorial organization, the document should provide a framework and incentive for genuine decentralization and regionalization of Serbia.
Still, in practical terms, for the largest number of people, perhaps the most significant changes are those that will open space for further reforms in a large number of areas. These are areas in which it is precisely the Constitution that has set a series of limitations on progress in normative regulation and practice.
CONSTITUTIONAL AMENDMENTS IN THE AREA OF THE POLITICAL SYSTEM
One such area is the political system. Serbia’s political system is designed in a way that contains numerous shortcomings, most of which have now been manifesting for over 30 years. The formal powers of various branches of government, their mutual relations, procedures for electing candidates to political functions, the capacities of democratic institutions and the resources allocated to them – all of these are elements that not only fail to enable democratic development, but encourage abuses and authoritarian tendencies.
For this reason, reform of the political system is the most important task in the context of the democratization of Serbia. Without this undertaking, every attempt at broader change will remain limited in scope and short-term, with a high likelihood that things will soon go in the opposite direction, as has happened so many times before.
In the following part of the text, as an example, there is an overview of the necessary constitutional changes in the area of the political system. A list is given of the articles of the Constitution that should be amended, with brief explanations:
Article 102 – abolish paragraph 2, according to which “a member of parliament is free, under conditions determined by law, to irrevocably place his mandate at the disposal of the political party at whose proposal he was elected as a member of parliament.” This provision introduced, in 2006, party ownership over the mandate, as one of the elements of complete party control over political life. This was demonstrated over the following several years through the practice of “blank resignations.” A free mandate is one of the basic principles of parliamentary democracy. Members of parliament are accountable only to citizens, as their representatives. Although the amendment of the relevant law has made it impossible to use “blank resignations,” we must not allow some parliamentary majority in the future, invoking the Constitution, to once again enable parties to remove and discipline members of parliament.
Since the same article, in paragraph 3, regulates the issue of incompatibility of the function of a member of parliament with other functions, it is necessary to also add a rule that a member of parliament cannot simultaneously be the president or deputy president of the assembly of a local self-government unit. In this way, absolute incompatibility of functions at the republic and local levels will be consistently insisted upon. The accumulation of functions has so far been one of the most negative phenomena in our political life.
Article 104 – introduce the election of a collective presidency of the National Assembly, and a system of rotation between representatives of the government and the opposition in the position of presiding officer. The proposal we have devised is a combination of certain elements from the political systems of Germany, Belgium, and Switzerland, and aims to prevent the parliamentary majority from permanently abusing the function of the president of parliament, and from disabling the work of opposition members of parliament. After the amendment of the Constitution, the next step is the amendment of the Law on the National Assembly and the Rules of Procedure.
Article 107 – enable the right of legislative initiative within its competence for the newly formed Central Election Commission. We propose the formation of a professional, permanent, competent, and independent election administration in Serbia. It will replace the previous one, which was composed exclusively of party loyalists and depended on the influence of the executive branch. At the head of the professional election administration will be the Central Election Commission, whose composition will include competent individuals with appropriate knowledge, work experience, and professional reputation. This body will take over the competencies related to the entire area of conducting and improving the electoral process.
The same article also regulates the right of citizens to propose laws (a people’s initiative for the adoption or amendment of laws). Reduce the required number of signatures for a people’s initiative to 15,000, as was defined by the 1990 Constitution. In this way, it will be easier for citizens to use this instrument of popular sovereignty.
Article 114 – change the method of electing the President of the Republic. We propose that the president be elected in parliament by members of parliament. This would introduce a parliamentary system of government in Serbia, modeled on the one that exists in Germany. The particularity of the model we propose lies in the fact that a two-thirds majority of the votes of members of parliament is required for the election of the president, instead of a simple majority. Such an amendment would prevent the position of head of state, and the legitimacy gained through a personal victory in direct elections, from being abused for the usurpation of complete power and the introduction of an authoritarian form of governance. This has happened to us far too often in the past 30 years, and represented the most obvious example of violation of the Constitution in our political life. The second reason is to resolve the problem of the mismatch between the formal powers of the president and the manner of his election. Namely, according to the Constitution of Serbia, the president has only protocolary and ceremonial competencies, but his real strength, which rests on the number of votes, exceeds the envisaged framework. This creates a strong incentive to exceed his powers. The third reason is the incentive for a person of reputation and integrity, who will be above everyday political and party divisions, to truly come to the position of President of the Republic. Only a president with that kind of support will be able to be the guardian of the Constitution and express the unity of all citizens. Amending Article 114 of the Constitution opens space for the subsequent amendment of the Law on the President of the Republic and the Law on the Election of the President of the Republic.
Article 203 – Reduce the required number of signatures for launching a people’s initiative to amend the Constitution from 150,000 to 100,000, as was already regulated by the 1990 Constitution.