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More than Hollow Words: Independent Bodies in Constitutional Revision

21.05.2017

Despite its potential to mark the ultimate break with the tradition of adopting constitutions in the absence of public consultations and broader social consensus, the 2006 Constitution of the Republic of Serbia was adopted in a rush that irreparably undermined its legitimacy. After a hasty drafting process, brief negotiations among the party structures and in the total absence of public and parliamentary debate, the deputies (MPs) of the National Assembly of the Republic of Serbia (hereinafter: National Assembly) adopted the text of the new Constitution, drawn up by the representatives of a narrow circle of the leading parties, rather than the competent parliamentary Committee for Constitutional Issues and Legislation. Apart from the problem of its legitimacy, the experts and the public were soon prompted to raise the issue of amending the Constitution for a number of reasons, from the deficiencies of its content and dissatisfaction with its inconsistent provisions, to the amendments that must be made within Serbia’s process of accession to the European Union (EU). In the EU accession process, constitutional revision is one of the prerequisites for the ratification and entry into force of the Treaty of Accession to the EU and the obligations arising from EU membership. Consequently, it is a step that must be made for Serbia’s progress towards EU membership. Given that the revision of the Constitution is now a certainty, the forthcoming constitutional revision process ought to be used to make the requisite amendments to the constitutional provisions in order to considerably improve the state’s legal and political system. These amendments should definitely include an emphasis defining the position and influence of independent bodies, as one of the key components of a stable and efficient democratic system developed on the principles of rule of law and good governance.

 

Independent bodies, which are often also referred to as the fourth branch of power, not only protect the citizens and their rights, but provide a strong mechanism for the effective oversight of the executive as well. They are the National Assembly’s key partners in exercising oversight of the executive and controlling the work of institutions, bodies and organisations exercising public authority. Efficient and effective work of independent bodies is prerequisite for ensuring balance among the holders of state power. However, previous research conducted by the European Movement in Serbia indicates that independent bodies still face obstacles and problems directly degrading their status and influence. Hampering the effective work of independent bodies affects the overall work of democratic institutions in Serbia, starting, for instance, with the National Assembly. The activities of the National Assembly have been reduced to the sheer formal role of “voting machine”, due to the concentration of power in the hands of the executive and the party structures’ excessive influence on the MPs. Functional oversight of the work of the executive is prerequisite for the separation and balance of power and, ensuring the rule of law as one of the key conditions for Serbia’s progress in the EU integration process.


Defining the position and remit of independent bodies guaranteeing the respect for fundamental rights in the Constitution itself will create the prerequisite necessary for strengthening their position, authority and influence. Strong, stable and effective independent bodies, the opinions and recommendations of which are respected and effectively implemented, are key guarantors of the protection of human and minority rights proclaimed in the Constitution. At the same time, they are indispensable for the establishment of stable and functional democratic institutions, which guarantee and respect the separation and balance of power. Precisely these prerequisites form the pillars of the rule of law and their fulfilment is the key step for Serbia’s progress in the EU integration process. In this regard, the European Commission’s Serbia 2016 Report reiterates the need to further enhance the “effective oversight of the executive”, as well improve the “understanding and acknowledgement of the remit of independent bodies”.


It should be noted that the major differences in the scopes and remits of the independent bodies impede us from defining them as a group in the Constitution, as for instance, formally defining them as the fourth branch of power. Yet, constitutional regulation of their stable position and roles would put in place the prerequisites they need for their proper functioning. On the other hand, the group of independent bodies in charge of the protection of human rights and fight against discrimination definitely warrants a place of its own in the Constitution, given their indispensable importance for protecting the guaranteed rights of the citizens, as well as the principles of the rule of law as the fundamental prerequisite of the Constitution. This Policy Brief thus focuses precisely on this group of independent bodies: the Protector of Citizens, the Commissioner for Information of Public Importance and Personal Data Protection and the Commissioner for the Protection of Equality.


This Policy Brief aims to identify the reasons for the constitutional regulation of the position and functions of these independent bodies, the potential advantages and any disadvantages of constitutionally defining them in the context of Serbia’s legal and political system, and to offer recommendations for regulating the position and functions of these independent authorities within the forthcoming revision of the Constitution. Drawing on its findings, the Policy Brief also aims to open a debate on the constitutional regulation of the principles underlying the establishment and work of other independent bodies. 

 

Download the Policy Brief



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vladimir jovanovic  -  
15.06.2017 20:31
Ne smemo menjati ustav ni slucajno.

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