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The position and role of the fourth branch of power in the present and future constitutional order of the Republic of Serbia


General provisions of the 2006 Constitution of the Republic of Serbia do not recognize the fourth branch of power. Article 4, paragraph 2 of the Constitution states that “Government system shall be based on the division of power into legislative, executive and judiciary”. Next paragraph of the same article states that the relationship “between three branches of power” is based on balance and mutual control.

However, although the fourth branch of power is not mentioned in the Constitution, there are certain provisions which have a direct impact on the position and role of the bodies that cannot be easily placed into one of the three traditional branches. It seems that the most typical examples of this confusing attitude are provisions on the Civic Defender.

Provisions on the Civic Defender are in Chapter Five of the Constitution, which is entirely devoted to the organization of government in Serbia. They are stated in a separate part of this chapter, i.e. separate from the provisions on the National Assembly, President of the Republic, government and public administration, and judiciary. According to these provisions, the Civic Defender acts as an “independent state body” whose role is to protect citizens’ rights and monitor the work of public administration bodies (Article 138, paragraph 1).

Similarly, in the provisions on the judiciary, there is a particular part which mentions another “independent and autonomous body”, i.e. the High Judicial Council, whose role is to “guarantee” independence and autonomy of courts and judges (Article 153, paragraph 1). The impression that this body is incompatible with the generally defined structure of government is strengthened by further provisions in the text of the Constitution, such as the one pertaining to the composition of the High Judicial Council, according to which it consists of members who belong to all three traditional branches of power, as well as of those elected by the National Assembly.

 Therefore, framers of the Constitution treated the division of power inconsistently. General provisions of the Constitution support the opinion that the power is divided into three traditional branches. However, particular provisions pertaining to some independent bodies imply that the fourth branch of power is constitutionally recognized....


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The Policy Brief was written as part of the project: “Awaiting a new Constitution”.




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