Ustavna rigidnost i aporije revizione vlasti u Republici Srbiji
Constitutional rigidity and aporias of the amendment procedure in the Republic of Serbia

Author(s): Darko Simović
Subject(s): Law, Constitution, Jurisprudence, Constitutional Law, Public Law, Evaluation research
Published by: Fondacija Centar za javno pravo
Keywords: Public law; constitution; revision; Republic of Serbia; rigidity; 2006; amendment; practices;
Summary/Abstract: Although not characteristic of post-socialist states, Serbia is distinguished by strong constitutional rigidity. Aside from the adoption of the new Constitution in 2006, there have been no attempts made to revise the constitution since the first post-socialist constitution from 1990. The author aims to identify the reasons for constitutional rigidity in the first part of this paper. In the authors’ opinion, there are five relevant factors: the unresolved statehood issue, the primarily protective function of the Serbian post-socialist constitutions, authoritarian constitutional tradition, explicit formal rigidness of the constitution; and informal amendments to the constitution. The second part of the paper deals with the theory of rational amendment procedure in transitional societies. In the third part, the author analyses the amendment procedure as foreseen by the 2006 Constitution and identifies its shortcomings. The main flaw being that the framers of the constitution did not rationally utilize the escalating amendment rules, because the majority of the constitutional provisions are amended by way of the more difficult proceedings, which involve voting in a citizen’s referendum. The basic conclusion of this paper is that the amendment procedure must be changed, for the escalating system to be maintained, but for constitutional matter to be established logically and precisely as to which would be amended using the general and which, the more difficult amendment procedure and to clearly identify the fundamental core, or better said identity of the constitution.

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