As part of the preparations for accession to EU Serbia will need to change its Constitution in order to transfer a part of jurisdiction to Brussels and to guarantee the independence of the judiciary. Contrary to popular belief it will not be necessary to exclude the pursuit over sovereignty of Kosovo from the highest legal act, estimated today legal experts at the presentation of the analysis dedicated to this topic.
„I believe that there are no obstacles for us to adequately formulate a position that this is a part of our territory which is currently not under our authority“, said professor at the Belgrade Faculty of Law Violeta Beširević at the presentation of analysis held in Belgrade Media Center by Vladimir Mednjak, an expert of the European Movement in Serbia.
Her assessment is that „the Constitution is not an instrument that can prevent unlawful secession but it can be used for internal political purposes“.
Assistant Professor of the Faculty of Law in Belgrade Tanasije Marinković said that perhaps it won’t be necessary to redefine the current provisions for Kosovo and Metohija in the Constitution, stating that they can be interpreted like a former Article of the Constitution of Germany prior to its unification which provided for implementation of regulations also to the rest of the territory when the time comes.
The author of the analysis Vladimir Medjak, former assistant director of the EU Integration Office in Serbia said that two types of amendments to the Constitution are needed – amendments that would allow entering provisions on the transfer of sovereignty to EU and direct implementation of one part of EU legislation, primarily decrees, which was required from all countries that have joined the EU, and amendments that would allow for Serbia to harmonize with the EU standards in areas it has not yet done so, especially concerning the independence of the judiciary.
Medjak, who is the Deputy President of the Research forum EPuS, pointed out that this is not about giving up sovereignty and that this was differently defined in different countries. In France for example the so-called integrative clause specifies that member states jointly exert sovereignty.
He said that it should be specified and that a special law should define the relationship between the national parliament and the government, and that this law should state the obligatory consultation of national parliament in European affairs since this institution following EU accession gets even more important role.
He stated that changes are necessary also to enable the realization of rights of European citizenry, namely to enable EU citizens who are residents in Serbia to vote in local and European elections.
This right will extend to our citizens residing in EU member states, which will be a benefit especially given the large number of our citizens abroad, said Medjak in the analysis.
The text also states that it is necessary to change the constitution due to non-compliance with required standards and also to guarantee the independence of the judiciary. This is commitment undertook by Serbia that should be fulfilled by 2017 with the Action Plan for Chapter 23. The main objection relates to the method of election of judges and members of the High Judicial Council as well as election of members of the State Prosecutorial Council.
A referendum needs to be organized on this topic, said Medjak, adding that it is important for it to not to be organized late in the accession process so that it would stay separated from the referendum on EU membership, for which he proposed that two thirds majority are prescribed for success in order to secure stability.
Action Plan for Chapter 23 in negotiations with the EU also envisages that a comparative analysis is used to conclude whether it is necessary to amend the Constitution for the political rights of minorities, which is a third possible amendment to the highest legal act, he stated.
The director of the Lawyers Committee for Human Rights (YUCOM) Milan Antonijević noted that there has not been sufficient debate when the Constituton currently in force was passed, which takes away some of its legitimacy.
„We hope that the working group (for the amendments to the Consitution) is open and that it won’t conceal from the public what are the proposed solutions“, he stated.
Antonijević said that he doesn’t want „only to criticize“ and that the Constitution of Serbia contains a provision under which the level of acquired rights must not be dimished which, as he states, is extremely useful for countries that are promoting this area.
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