The principle of separation of powers in Serbian constitution and constitutional practice

Abstract

The principle of separation of powers into the executive, the legislative and the judicial is one of the fundamental and universal principles of modern constitutional states. In the Republic of Serbia, this principle is formally applied only since the 1990 Constitution. Until then, just as the rest of Yugoslavia, in Serbia was a party state (political monism) and the power was organized as single. In the 1990-2000 period the power was concentrated in the hands of Milošević, and hence there was no true separation of powers. It is only after 2000 that the principle of separation of powers had started to be practiced in reality. Both the 1990 and the current, 2006 Constitution, have projected the parliamentary model of organization of power. The government answers only to the parliament, whilst the president of the Republic has only traditional (not reinforced) powers of the chief of state (monistic parliamentary system). On the other hand, the legitimacy of the president of the Republic is reinforced by having the president elected on direct elections. This, coupled with the possibility for the president of the Republic to be the leader of one of the major political parties, has attracted attention over the past four years. Namely, in the 2000-2004 period the office of the president of the Republic was not characterized by active participation in governing the state (for a long period the office was vacant). Over the past eight years (in the 2004-2012 period), the president of the Republic, Boris Tadić, was at the same time also the leader of the Democratic party, one of the major parties in Serbia. During the first half of that period, the prime minister came from a different party (2004-2008), and hence the participation of the Government and the president of the Republic in the executive were kept within the lines envisaged by the Constitution. However, in the 2008-2012 period, the Government was formed by the party whose leader is the president of the Republic, together with a number of small parties. Primarily because of that fact, over the last four years there was a visible shift towards a semi-presidential system. There are other weaknesses in the functioning of the constitutional model of organization of power, the most visible of which is the lack of efficient parliamentary control over the Government, supported by evident weakness of the insufficiently developed parliamentary life. Even the wording of the constitution has a number of drawbacks, which impede the development of parliamentarism and at the same time, enable partocracy. This primarily relates to the constitutional provision whereby the mandate belongs to the MP, even though the MP is 'free, under the terms provided by law, to irrevocably confer his mandate to the political party at the proposal of which he was elected MP'. This problem is temporarily resolved by the amendments to the statute governing elections (last year, after the interventions by the Constitutional Court and the European Union), but the wording of the constitution remains unchanged. Another major weakness in the realization of the separation of powers is insufficient judicial independence. Judicial reform is slow, and its future success shall apparently largely depend on the incentives by European institutions.