"EUROPEAN CONSTITUTION" A LA SERBE: A SUIT WITH THOUSAND PATCHES

By Ivan Torov

Out of the blue and in the atmosphere of Last Supper or flea market haggling of a handful of party leaders Serbia was faced with a dilemma or, as many put it, with fait accompli. What shall one do? Go to the polls and vote "for" or "against" the constitution adopted in the "darkness of the night," or just boycott the whole thing for its undemocratic procedure and the lack of convincing argumentation in favor of the imposed constitution? So, people wonder - is the manner in which the "most democratic" and "most liberal" constitution saw the light of day nothing but yet another gross, collective, political manipulation that screens some other, more bizarre interests of ruling parties and groupings (ideologically and nationally) close to them?

No doubt that the forced exaltation with "unprecedented, historical consensus" of the Serbian Radical Party, the Socialist Party of Serbia, the Democratic Party of Serbia and the Democratic Party reached its goal even before mixed up and confused citizens decided whether to follow "the patriotic trumpet" or mind their own business. Propaganda machinery mobilizes the national corps at large scale. On the one hand it flocks together all state and para-state institutions and almost all major media bent on fulfilling their "statehood task," while, on the other, marginalizes civil sector organizations (greatly thanks to the international community's indifference to the referendum). In such "all-inclusive popular campaigning" historical myths and even delusions become once more a part of domestic political game, even the crucial motive capable of kicking off dormant voters to polling stations. And the "Kosovo curse" once again becomes a mighty propaganda instrument for arranging and settling domestic affairs. At the same time all this is nothing but a smoke screen used to conceal the heart of the matter - the almost desperate attempt of aggressively suppressed civil sector groups to alert the public of some elementary facts: namely, that only by the very nature and logic of this "Balkan pub" and only in the Serbian laboratory of political alchemy the things that have been cooked and simmered far from the public eye can be proclaimed triumphs of democracy. And that the political technology Kostunica, Tadic, Nikolic and Dacic have applied "to the pleasure of the nation and citizens living here" takes us to the foyer of revived national and ideological totalitarianism. Once - in late 1980s and in 1990s - the one-party totalitarianism of the ruling oligarchy, riding on the wave of nationalistic euphoria and homogenization, turned Serbia and its neighborhood into a wasteland. What they are doing today is about the same thing - true, everything is somewhat modified as they use more "civilized" methods "sophistically" bandaged in "good, pro-European nationalism" but, on the other hand, multiply the consequences. Probably the most serious consequence of all is already there for all to see: the "historical consensus" of all and sundry (in the name of grotesquely perceived patriotism and "sacred state and national interests"), of the Radicals and the Socialists on the one hand, and the Democrats and rigid, conservative, even feudal populists on the other testify of Serbia's present-day position, her course and her final destination.

It is only natural that an atmosphere as such snarls at serious criticism that a constitution even when ideal by its contents reveals its true nature by the manner in which is has been cooked and served. The fatal attraction of "easy and quick solutions," of undemocratic and authoritarian behavior, would not stand any restriction.

Indeed, what kind of constitution is on the table? And for whom has it been made? If the preamble quoting "inalienable" Kosovo is the catch supposed to attract over 3.3. million "yes" voters and if "stamping Kosovo" (its territory, of course) is "a historical and just truth" while Albanians' exclusion from electoral rolls "pure pragmatism, "adjustment to reality" or, in other words, "patriotic" interpretation of loyalty to the state, what is it that prompts constitution-makers to label this act "modern" and "European?" What is it that motivates many legal experts to speak in favor of yet another imposed creation some people see as the project aimed at enthroning nationalism as dominant political system through further unitarization (centralization) of the state and underlying its more or less national character? This could be just an attempt. But the trouble is that at some point such attempt, in multiethnic Serbia, can turn successful and set off a chain of consequences. That wouldn't be much of a problem for some normal states. But in Serbia, weighted by the rich and tragic experience of nationalistic violence, wars and ethnic cleansing, creation and constitutional proclamation of a nation-state at best begets suspicions and classifies citizens into those with identity and those who are faceless. Trumpeting about "the values of civil democracy," "European experience" and respect for "highest standards of human and minority rights" can hardly veil such connotations.

As there was no public debate, even legal experts were deprived of the possibility to scrutinize the constitutional draft and criticize it preventively, rather than post festum. Logically, non-existent public debate played into the hands of Serbian politicians by providing them with the opportunity to glorify, often beyond good-taste boundaries, the compromise of Milosevic's disastrous ideological matrix and its once opponents, the almost forgotten "revolutionaries" of October 5. A compromise need not be a bad thing in itself. But the number and the type of concessions the ruling coalition (backed by the Democratic Party) made to the Radicals and the Socialist in the name of "so needed national harmony" is the constitution's biggest and probably insurmountable obstacle, according to many experts in constitutional law. A constitution resembling a suit with thousand patches opens to door both to arbitrary interpretation and implementation or non-implementation. In other words, it provides a shortcut to petty politics instrumentalization, but also to blockades - when it becomes hard to make compromises on interpretation and implementation. Many legal experts and political analysts have voiced well-argued stands in favor of such assessment. According to them, the constitution was deliberately planned for one-off use (as a reaction to the possibility that the international community verifies the separation of Kosovo) regardless of leading constitution-maker Vojislav Kostunica's fanatical messages that there is no force that would ever take Kosovo out of the Serbian constitution.

The constitutional draft is so phrased that its true purpose - if the draft is verified in the referendum - will not be revealed in its contents but in ensuing bylaws. Vagueness and ambiguity of many provisions provide plenty of opportunity for the ruling elite (the actual or future, it makes no difference) to enforce some other, parallel constitution through regulations and bylaws. For example, if the draft lays down that "anyone" can make a decision on abortion, what are the guarantees that some future lawmakers would not perceive "anyone" as the church, some state or para-state commissions et al., rather than a woman? Or, if even Milosevic's constitution provides that the police shall not enforce people's apartments without search warrants, while Kostunica's constitution omits such clause, it's not hard to imagine what laws and what consequences might be in store for us with Milosevic's intact secret police arbitrarily and in full swing tapping phones and tailing people. The constitution that has already - against the backdrop of the tense pre-referendum offensive and propaganda - given rise to many dilemmas and controversies, and even fears that it could lead Serbia to a blind alley and new conflicts actually becomes a paradigm of the state of affairs in Serbia and her elite's aptitude for repeating and multiplying the mistakes from the past - the aptitude for turning citizens not only into subjects, but also the biggest victims of political, national, partisan and ideological experimentation.

In this context, Serbian politicians' tub-thumping statements about the state getting a "European constitution" at long last cannot but elicit sarcastic smile on the face of a person faced with the gloomy fact that Serbia's elite would not arrest Ratko Mladic, that negotiations with the EU were suspended back in May, and, as it seems, sealed this October. It's hard, almost impossible to convince the advocates of Serbia's European future that the ruling elite stalling Serbia just for one man indicted of the most monstrous crime since the World War II is ready and capable to make a truly European constitution. Simply, a European constitution and Balkan politics of delusion do not go hand in hand.