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Necessity of Amending the Serbian Constitution Provisions on Constitutional Change within the EU Accession Process

10.05.2017

EU Member States’ experiences indicate the necessity of amending their national constitutions during the EU negotiation and accession process. Moreover, the constitutions of some countries were amended more than once during the process. The amendments involved both the introduction of the so-called integration clause in the national constitutions and the amendment of individual constitutional provisions requisite for the constitutions’ alignment with EU membership obligations. Furthermore, countries may need to amend their constitutions after they join the EU as well, due to changes in the functioning of the EU. Serbia is also likely to face the necessity of changing its Constitution.


The Constitution of the Republic of Serbia lays down a complex constitutional amendment procedure, wherefore it falls in the group of so-called rigid constitutions. A two-thirds majority in the National Assembly needs to be secured twice for amending both most of the provisions in its normative part and the Preamble (on the proposal to amend the Constitution and on the amendment(s) themselves), which is followed by the ratification of the amendment(s) by the majority of votes cast at a referendum (Article 203 of the Constitution). Naturally, a referendum would be required in case of adoption of a completely new text of the Constitution. Under the Constitution, proposed constitutional amendments that are not upheld by a two-thirds majority in parliament may not be resubmitted for a year.


Given the identified need to amend the Constitution, on the one hand, and the features of the constitutional amendment procedure, on the other, it may be concluded that the difficult amendment procedure will slow down the process of Serbia’s accession to the EU and any constitutional changes that may be required once it joins the EU. The duration of the process will undoubtedly be affected by at least two referendums on the constitutional amendments and one referendum on accession to the EU. Furthermore, every unsuccessful attempt to amend the Constitution (under the valid provisions on its revision) would prolong the procedure for another year.


This is why this Policy Brief, based on the analysis of the constitutional provisions and constitutional revision experiences, as well as the analysis of the constitutions of EU Member States, provides suggestions on amending the provisions of the Constitution for its own amendment.


Deliberation of constitutional reform needs to take account of its dynamic. A comprehensive constitutional reform plan, covering all the requisite and/or planned amendments, needs to be drawn up. Its authors need to bear in mind its feasibility and the duration of the reform, especially in light of the complexity of the constitutional amendment procedure.


The issue of the constitutional amendment procedure needs to be reviewed before the procedure for amending specific parts of the Constitution is launched, simultaneously with the discussion on amending the other parts of the Constitution at the latest. More precisely, the constitutional provisions on the revision of the Constitution need to be amended within its first revision – be it total (if the view voiced in expert analyses - that the whole Constitution needs to be changed, regardless of EU accession - is adopted ) or partial. This Policy Brief has been prepared with the aim of initiating a timely debate on this subject.

 

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