О неким „антиидентитетским“ местима у српском Уставу
On Some “Anti-Identy” Spots in the Serbian Constitution

Summary/Abstract: Constitutional identity is an important concept in contemporary constitutional law. In theory and in practice, however, that concept is rather vague. The author gives a „working definition“ of constitutional identity as a merger of universal and particular principles and values. In his opinion, the Constitution of Serbia from 2006 has not succeeded to consolidate all the important features of serbian constitutional identity. The author is analyzing several “anti-identity“ spots in the Constitution, like those related to the definition of separation of powers, the nature of representative ̓s mandate, permanence of judicial office and the Preambule. The Constitution defines and proclames the separation of powers by introducing the principle of „checks and balances“ between the three state funcions. That type of separation of powers is not compatible neither with european nor with serbian constitutional identity. In this way, the Constitution has opened the door for the uncontrolled influence of politics on the judiciary. The Constitution does not define free representative ̓s mandate in the explicit manner. The judicialization of the relation between political party and deputy is not consistent with european constitutional identity. The Constitution proclames the permanence of judicial tenure, but this principle is relativized by the probationary mandate of persons who are elected judges for the first time. This solution is also not compatible neither with european nor serbian constitutional identity. Finally, the national constitutional identity is not expressed in the Preambule in a proper manner. The Preambule speaks about „the substantial autonomy“ of Kosovo and Metohija. That notion has never been defined. It was construed for political usage. That is why the author concludes, which sounds paradoxicaly at the first glance, that the Preambule is also not in accordance with serbian constitutional identity.

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