Serbia's New Constitution: Democracy Going Backwards
Europe Briefing N°44
8 Nov 2006
Premier Vojislav Kostunica won a high stakes gamble with passage of Serbia’s draft constitution in the 28-29 October referendum. However, numerous credible reports indicate the process was deeply flawed and the result falsified. The referendum cannot be characterised as either free or fair. The new constitution could prove a step away from European values. It opens the door to increased centralisation of the state, curtailment of human and minority rights, destruction of judicial independence and potentially even a parliamentary dictatorship. The process used to pass the constitution illustrates how Kostunica continues to transform Serbia into something closer to illiberal authoritarianism than liberal democracy; yet, the referendum was welcomed by the Council of Europe, the European Union and the United States.
The main purpose of the new constitution was to demonstrate Serbian hostility to, and create further legal barriers against, Kosovo independence. It was a victory for Kostunica’s Democratic Party of Serbia (DSS) and his ideological allies, Milosevic’s Socialist Party of Serbia (SPS) and the Serbian Radical Party (SRS) of war crimes indictee Vojislav Seselj. The biggest losers are President Boris Tadic and G17+. The Liberal Democratic Party (LDP) of Cedomir Jovanovic could profit at the expense of Tadic’s Democratic Party (DS).
Belgrade continues to pursue three main Kosovo goals: first to delay status resolution indefinitely, in hopes of provoking Albanian violence and so strengthening Serbia’s position at the bargaining table; secondly, partition; and thirdly, to keep Kosovo from gaining diplomatic recognition and UN membership.
The new constitution makes it legally impossible – without further constitutional amendment – for Serbia to recognise Kosovo independence and could contribute to long-term political instability should it sanction neighbouring states for doing so. This would continue Serbia in its generation-long role as a source of instability in the Balkans, though it does not appear Belgrade would use its security forces to assert its territorial claim to any areas of Kosovo south of the Ibar River.
There is significant domestic political pressure against early parliamentary elections, particularly from the SPS, SRS, and DSS, but there is an increasing possibility they may be held within three months. It is doubtful that they would include a presidential election. The government, however, still wants to delay new elections as long as possible, partially in the hope this would cause the international community to delay the Kosovo status process out of concern an independence decision could bring the SRS to power. A real possibility exists that the new constitution could be misused to impose a temporary state of emergency to deal with the government’s political enemies.
The international community has two goals in dealing with Serbia. The first is a strong desire to strengthen democracy while promoting European integration and the transition to a market economy. The second is – unrealistically – to gain Serbian acceptance of Kosovo independence. Many see these two goals as at odds, fearing early recognition of Kosovo’s independence could damage Serbia’s democratic political forces and move it further from Europe. The result has been a policy of mixed signals.
In fact, Serbia’s democracy is imperilled by its own democratic politicians. Kostunica rehabilitates Milosevic-era personnel and policies, while trying to outflank the Radicals on nationalist issues. His refusal to arrest Mladic and the subsequent standstill in talks with the EU reflect his policy priorities. Cooperation with the SPS and SRS is easier than with Tadic’s pro-Western DS. G17+ too has not placed a European agenda ahead of nationalist policies.
In the short and medium term, there may be little the West can do to save Serbian democracy. Kostunica and most of the governing coalition parties, as well as their supporters in the SRS and SPS, appear ideologically inclined more towards paternalistic, illiberal authoritarianism than Western liberal democracy. This will continue to create tensions not only within Serbian politics, but also within the EU, as Brussels confronts the reality of political elites who show little enthusiasm or interest for the reform measures necessary for European integration.
Belgrade/Brussels, 8 November 2006
 It is a recurring theme of this paper that the common labeling of Serbia’s political parties as “democratic” (e.g. DS, DSS, G17+) or ‘non-democratic’ (e.g. SPS, SRS) is not especially helpful either in understanding domestic political dynamics or as a guide to international policy-making.