Dr Oliver Nikolić
An Outline of the Constitutional “State of Affairs” in South East Europe
I. Crisis of the Federal Republic of Yugoslavia and Creation of the State Union of Serbia and Montenegro
Creation of the union of Serbia and Montenegro, for the fourth time in the last one hundred years, is an attempt at coming out of a deep crisis of the federation the Federal Republic of Yugoslavia found itself after the adoption of amendments in July 2000. However, suspicion concerning the crisis of the rule of law persists, particularly regarding the last ten years or so. This may be explained by the fact that the 1992 Constitution of Yugoslavia itself was legally void (among else because the procedure for changing the Constitution was violated, and because the federal body that adopted the Constitution lacked both legality and legitimacy). The constitutions of the member-republics too, particularly the 1990 Constitution of Serbia and partly the 1992 Constitution of Montenegro, were never in agreement with the federal Constitution, as well as several of the acts of the member-republics and the federation, which only fills up the picture of the situation concerning the rule of law. In the Republic of Serbia during the preceding period laws were passed in violation of the basic human rights without any reaction from constitutional courts, which definitely pointed to the fact that their role was more political than judicial. The amendments to the Federal Constitution passed in July 2000, have only aggravated the situation, so that it may be maintained that the Council of the Republics had lost its federal character weakening somewhat the influence of Montenegro, which from that moment (and with reason) refused recognition of the Federal Government and its acts.
Changes that took place in October 2000 were misdirected from the start, and instead of abolishing the Federal Constitution and scheduling elections for the Parliament that would pass a new democratic constitution, the new government decided to take the 1992 Constitution of the Federal Republic of Yugoslavia, together with the amendments, as a parameter of legality and legitimacy.
It is obvious that the new union of Serbia and Montenegro has taken the same course, the course of illegality, since the procedure for changing the Federal Constitution was completely disregarded. However, it should not be objected that the process of creation of this new community was illegitimate, first of all because the creation of such a new community would really makes possible the promised move towards the European Union. And instead of accepting the offered chance of the EU and adopting by urgent procedure the highest legal act of the community, the Constitutional Charter, this process turned into an endless interpretation of the so-called Belgrade Agreement. Although the text of the Constitutional Charter was finally levelled out, admittedly with a six months delay, it still cannot be definitely asserted how this Union of Serbia and Montenegro will function in practice. What is first of all meant here, relates to the conflict of competences between the Union and the member-republics, as well as to the relevant institutional reforms. The delay in passing the Constitutional Charter, inevitably causes delay in the process of adopting the new, i.e. amending the actual constitutions of the republics, which was, according to the Belgrade Agreement, scheduled for December 2002.
Proceeding Points for the Restructuring of Relations between Serbia and Montenegro prescribe the procedure for passing the Charter, and its content, leaving to the future framers of the constitution only the formulation of the text of the Charter. In addition, since it provides for completely different elements of the procedure for passing the Constitutional Charter from those prescribed by the still valid 1992 Constitution, this document may be considered as unconstitutional. Otherwise, the so-called Belgrade Agreement establishes a novel, fabricated kind of state union, being neither a federation nor a confederation, completely unknown in practice and theory of constitutional law, essentially leading to further disintegration and final dissolution of any kind of a union between Serbia and Montenegro.
1. Preamble and Introductory Provisions to the Charter of Serbia and Montenegro
The Draft of the Constitutional Charter of the state union of Serbia and Montenegro contains a Preamble and 27 Articles. Already at first sight it can be noticed that this draft is extremely short and that it does not deal in sufficient detail with several elements essential to the existence of a state.
The Preamble states that the State Union of Serbia and Montenegro is constituted by the state of Montenegro and the state of Serbia, including the Autonomous Provinces of Vojvodina and Kosovo and Metohija, regardless of the fact that the latter is practically not under the jurisdiction of Serbia, but under international protectorate according to the Resolution 1244 of the Security Council of the UN. The goals of Serbia and Montenegro include different activities, without specifying how they shall be practically implemented. It is obvious that the framers of the Constitution did not have a clear vision of how such goals, otherwise politically justified and useful, shall be accomplished. The only thing that can be anticipated from such scanty provisions, is that the leading idea of the framers of the constitution was integration of the state union into the European Union.
Impreciseness and deficiency of the Constitutional Charter reflects itself also in the lack of a definition of the symbols of state union, which is probably left to be regulated by some later act of the Parliament of Serbia and Montenegro. According to the Charter, Serbia and Montenegro have no capital city, but only the administrative centre situated in Belgrade, also the seat of the Parliament and the Council of Ministers, while the Court of Serbia and Montenegro is dislocated to Podgorica.
Protection of human and minority rights and civil liberties is regulated by a special charter, a constituent part of the Constitutional Charter. If protection of some of the rights enumerated is not ensured by the member states, this shall be undertaken by the Union of Serbia and Montenegro.
The strongest state attribute of Serbia and Montenegro is her international personality. Serbia and Montenegro is a member of the world and regional organisations, has the right to establishing of international relations with other states and international organisations and to make international treaties and agreements. What is positive in the Constitutional Charter is the fact that it does not abandon the former provision of the Constitution of the Federal Republic of Yugoslavia (Article 16) which provides that a ratified and published international agreements shall become integral part of the national legal system, and that such acts shall have primacy over the law of Serbia and Montenegro, i.e. the law of the member states.
2. Institutions of the State Union of Serbia and Montenegro
The Constitutional Charter establishes five common institutions of the state union, i.e. the Parliament of Serbia and Montenegro, President of Serbia and Montenegro, Council of Ministers of Serbia and Montenegro, the Court of Serbia and Montenegro and the Armed Forces of Serbia and Montenegro.
1. Parliament of Serbia and Montenegro. Parliament is the highest organ of the state union. It is unicameral, in contrast to the Parliament of the Federal Republic of Yugoslavia, which was bicameral. The Charter states that the Parliament consists of 126 members, 91 being from Serbia and 35 from Montenegro, without explaining how it has arrived at such numbers. It is clear that the substantially greater number of electors in Serbia was taken into account, but positive discrimination concerning the number of the members from Montenegro is also visible. The rationale of such a provision, also, should be looked for in the strict observation of the Belgrade Agreement which guarantees the mechanism of protection against outvoting of one of the member state by the other. Such protection is also employed in regarding the way of decision-making by the Parliament, where the majority of all the members is required, as well as the majority from both the member states separately. This method of election for the Parliament of Serbia and Montenegro is interesting also for the reason that it points to an obvious political compromise of the ruling parties in the assemblies of Serbia and of Montenegro. In the first two years following the adoption of the Charter, members of Parliament shall be elected indirectly, proportionally to the number of seats their parties have in the assemblies of the republics, and after the expiry of this period, at direct elections. However, if within next two years parliamentary elections should take place in Serbia or Montenegro, the structure of the Parliament of Serbia and Montenegro shall be altered proportionally. Whether such elections conform to the European and democratic standards, as it is claimed by the Charter, is to be answered by the creators of such provisions.
The Parliament has competences in all the fields related to international personality of the state, identification of borders, declaration and lifting of a state of war, issues related to standardisation, intellectual property, measurements and precious metals, statistics, policies of immigration and asylum, visa system, free movement of goods, services, people and capital within the territory of Serbia and Montenegro, and the like.
2. President of Serbia and Montenegro. One of the organs of the new state union is the President of Serbia and Montenegro, bringing together the former functions of the President of the Federal Republic of Yugoslavia and the Prime Minister of the Federal Republic of Yugoslavia. A candidate for this office shall be proposed by the Speaker and the Deputy Speaker of the Parliament, and shall be elected by the Parliament by a necessary majority of votes. This is an essential issue since the consequence of a repeated non-election of the proposed candidate for the office of the President of the state union means dissolution of the Parliament, a perplexity remains as to the required majority of votes. This article explicitly states that the President of the State Union and the Speaker of the Parliament shall not be from the same member-state, as well as that persons from the same member-state may not be elected to this office for two consecutive terms lasting for four years. The President of Serbia and Montenegro, among else, represents the State Union in the country and abroad, presides over and administers the Council of Ministers, proposes and recalls ministers, is a member of the Supreme Defence Council, and performs protocolar and other similar functions.
3. Council of Ministers. This institution is the authority of executive of Serbia and Montenegro and consists, in addition to the President of Serbia and Montenegro, of five ministers. The ministries surviving at the level of the state union are the following: Ministry of Foreign Affairs, Ministry of Defence, Ministry for International Economic Cooperation, Ministry for Internal Economic Cooperation and Ministry for Human and Minority Rights. Proportional representation, according to the spirit of the Charter, of both the member-states in the Council of Minister has consistently been carried out so that three of the ministers have to be from one of the member-states, and two ministers and the President of Serbia and Montenegro from the other. This principle applies also to deputy ministers, while the Minister of Foreign Affairs and the Minister of Defence and shall switch their roles with their deputies after two years. The list of candidates for the Council of Ministers shall be proposed by the President, and they shall be elected by the Parliament. If the list does not receive the required majority of votes on three separate occasions, the Parliament shall be dissolved and new elections called. The Council of Ministers shall be competent in making and implementing the policy of Serbia and Montenegro in line with the common policy and interests of the member states, to propose to the Parliament of Serbia and Montenegro laws and other acts, to coordinate the work of Ministries, to appoint and dismiss the heads of diplomatic and consular missions of Serbia and Montenegro and other officials, to adopting by-laws, decisions and other general acts, and in to discharge other executive functions.
4. The Court of Serbia and Montenegro. It is worth noting that the Charter does not specify the number of judges constituting this judicial authority, but only states that it shall include an equal number of judges from both the member states. The term of office of judges shall be six years with no possibility of re-election. Jurisdiction of the Court includes settling of disputes between the institutions of Serbia and Montenegro, or disputes between the institutions of Serbia and Montenegro and one or both of the member-states, as well as ruling on petitions of citizens (if no other recourse has been provided in the event the institutions of Serbia and Montenegro have violated their rights or freedoms guaranteed by the Constitutional Charter), ruling on whether the constitutions of the member states are in conformity with the Constitutional Charter, ruling on whether the laws of Serbia and Montenegro are in conformity with the Constitutional Charter, i.e. on whether the laws of the member states are in conformity with the legislation the state union, as well as ruling on the legality of final administrative acts of the institutions of the state union. All decisions of the Court of Serbia and Montenegro are binding, without the right of appeal. The Charter states that the Court is authorised to invalidate laws, other regulations and enactments of the institutions of Serbia and Montenegro that are contrary to the Constitutional Charter and the laws of the state union, while it says nothing of the constitutions and laws of the member-states that are contrary to the relevant acts of Serbia and Montenegro, which may suggest that these shall be directed to the parliaments of the member-states.
5. The Armed Forces of Serbia and Montenegro. One of the constructive novelties in the Constitutional charter is putting of the armed forces under civilian and democratic control. The Commander-in-Chief of the Armed Forces shall be the Supreme Defence Council, consisting of the President of Serbia and Montenegro and both the presidents of the member-states, and taking decisions by consensus. The new state union abolishes military courts and transfers their jurisdiction to the regular courts according to the law.
3. Other Relevant provisions of the Constitutional Charter of Serbia and Montenegro
Disharmony between the constitution, laws and other acts of the state union and the member-states will be a serious problem and will probably affect the functioning of the common state. This was assumed by the framers of the constitution, and made them emphasise that all the mentioned acts have to be harmonised. This kind of provision is usually not inserted in the acts of constitutional character because it is so obvious that it is taken for granted. However, the Charter fails to mention until when those acts have to be harmonised, but having in mind the recent past, as well as the method of drafting of constitutional and statutory texts in Yugoslavia, this will certainly not happen in near future.
The Constitutional Charter has first to be adopted in the National Assembly of the Republic of Serbia and the Assembly of Montenegro, and in identical texts, i.e. without the possibility of alteration and making of amendments. After adoption in the assemblies of the member-republics, the Charter is to be passed on to the Assembly of the Federal Republic of Yugoslavia, to be adopted and promulgated. After entering into force of the Constitutional Charter, all the laws of the Federal Republic of Yugoslavia shall be enforced as the laws of Serbia and Montenegro if their subject matter remains within the competences of the state union of Serbia and Montenegro. Other laws of the Federal Republic of Yugoslavia shall be enforced as the laws of the member-states until new laws are passed, the assemblies of the member-states being authorised not to enforce them. But, since the Assembly of Montenegro has as long ago as July 2000, out of protest against the unconstitutional procedure whereby the Federal Constitution was amended, declared by a resolution that it does not recognise anymore the federal authorities and their acts, including the laws passed by the Federal Parliament, it has begun the legislative activity in the sphere belonging according to the Constitution of the Federal Republic of Yugoslavia to exclusive federal competence. The product of such activity were some of the laws in the economic sphere, such as the Central Bank of Montenegro Act, Customs Act, Companies Act or Bankruptcy Act.
The provisions on the property of Serbia and Montenegro are not sufficiently precise and detailed, leaving it unclear what is to be considered as property necessary for the operation of the institutions of Serbia and Montenegro. This imprecision is probably most conspicuous in case of the Armed Forces of Serbia and Montenegro, where it may reasonably be asked whether the property of the Armed Forces of the Federal Republic of Yugoslavia remains the property of Serbia and Montenegro.
Very provocative is the provision on the possibility of withdrawal from the state union after the expiry of a three years term. A decision on the change of status both the member-states may make only after holding a referendum. The Charter points that if Montenegro withdraws from the state union, all the international documents related to the Federal Republic of Yugoslavia, including the Resolution 1244, shall pertain and apply fully to Serbia as its successor. A question remains, however, what would happen to the Resolution 1244 if Serbia decides to change its status, or if both the member-states decide on such a solution. Finally, the member-state that, according to the Charter, does not exercises the right of withdrawal shall inherit the right to international legal personality, and in case both Serbia and Montenegro decide on independence, the succession procedure shall be carried out as it was the case with the former Socialist Federal Republic of Yugoslavia.
III. Concluding Remarks on the Constitutional Charter of Serbia and Montenegro
Constitutional Charter is the supreme legal act of the State Union of Serbia and Montenegro, and it may not be maintained that it was drafted in haste. If we have in mind that the drafting of the Constitutional Charter of Serbia and Montenegro was six months overdue, there is no excuse for a substantial number of imprecise, unclear and illogical provisions. The reason for this should be looked for in unreadiness of the politicians to make compromises and in their disregard for the national and state interests in favour of narrow party interests. As a consequence, we have a constitutional act with little chance of being implemented soon.
Since the Constitutional Charter is silent on the question of the majority necessary for its adoption in the assemblies of the member-republics, as well as in the Assembly of the Federal Republic of Yugoslavia, and the procedure for amending the still valid Constitution of the Federal Republic of Yugoslavia has already been disobeyed, it is irrelevant whether this will be simple or qualified majority. It would be most suitable that the Constitutional Charter of Serbia and Montenegro be adopted as soon as possible, in order to enable the new union to join the European integration trends, i.e. negotiations on the process of association and stabilisation.
It also seams that the framers of the constitution have failed to include within the competences of Serbia and Montenegro matters like frequency control, flight control, and mutual recognition of school and university diplomas and titles. Property relations are related to the Article 1 of the Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Liberties, which is expected to be ratified following the admission of this country to the Council of Europe. As Serbia and Montenegro is the only internationally recognised legal personality, it would be appropriate to retain the basic property relations within the competences of the common state, as it was previously the case.
All the questions, about which the framers of the constitution failed to reach the agreement, were simply omitted or were very broadly formulated. Removing of such gaps in the law would only be enabled by passing of new, special laws and other acts, or possibly by means of authentic interpretation by some authority of the state union. It is obvious that the framers of the constitution paid more attention to consistent implementation of the mechanism of equal representation of the member-state, than to the essential matters concerning the existence of a functional state union, which often lead to confusions and loose ends.
The question of harmonisation of constitutions, laws and other acts of the member-states with the Constitutional Charter and the laws of Serbia and Montenegro, as well as the harmonisation of the economic systems of the member-states, is one of the main problems concerning the functioning of the future union. If we keep in mind that there are two different foreign trade, customs, tax, monetary and banking systems, and that the Charter requires the Minister for Internal Economic Cooperation to institute and provide for undisturbed operation of the common market, including free movement of persons, goods, services and capital, it is hard even to speculate on the problems that will confront the implementation of such constitutional provisions. As regards the property of Serbia and Montenegro, there remains the question of who is to be authorised to decide what is the property necessary for operation of the institutions of Serbia and Montenegro.
When we are aware of the fact that even before the new state union has started to exist some are already thinking of its dissolution, it is only to be hoped that this period is going to be characterise by faster and stronger process of approaching the European Union.
 1992 Constitution of the Federal republic of Yugoslavia, Articles 139-142
 The full title of this document is "Proceeding Points for the Restructuring of Relations between Serbia and Montenegro", it was signed on March 14, 2002 by the President of the Federal republic of Yugoslavia, vice-president of the Federal Government, president of Montenegro, Prime Minister of Montenegro and prime Minister of Serbia, in the presence of the high representative of the European Union for the Common Foreign and Security Policy.
 This is an obvious violation of the provisions on amending the Constitution of Serbia (Articles 132-134 of the 1990 Constitution of the Republic of Serbia) and of Montenegro (Articles 117-119 of the 1992 Constitution of the Republic of Montenegro). In Montenegro it is impossible to decide on the change of state status, form of government and change of borders without previously held referendum, so this is also a case of violation of the constitution.
 This includes cooperation with international courts, membership of Serbia and Montenegro in international organisations, etc.