1974 Constitution equalized the legal and political status of Serbia and Kosovo
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Jun 21, 2009, 9:44:15 PM6/21/09
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1974 Constitution equalized the legal and political status of Serbia
and Kosovo
Written by Editor
“The Constitution of 1974 nowhere specifies that Autonomous Provinces
are states, but neither does it deny this, except that it says that
they are part of the Republic of Serbia, which, therefore - since this
is nowhere and in no way excluded - could theoretically be considered
as a kind of sub-federal republic, or a state which, while federative
in its internal structure, is part of a wider, quasi-federal state
formation.”
(Vojislav Seselj)
by Branka Magas
We publish below extracts from a pamphlet titled “What is to be done?”
which set out in an exceptionally clear and succinct manner the
position that Kosovo enjoyed in the former Yugoslavia, and why Serb
nationalists found it unacceptable. Written by Vojislav Seselj, the
now notorious leader of the Serb Radical Party which governed Serbia
in coalition with Slobodan Milosevic's Socialist Party of Serbia and
Mrs Milosevic's Yugoslav United Left, it was first published in 1985
by a London-based journal Nasa Rec [Our Word]. At the time of its
appearance, Seselj was serving a prison sentence for, among other
things, advocating Bosnia-Herzegovina's disappearance; the Serbian
Academy of Arts and Sciences was busy writing the Memorandum that
provided the ideological justification for a Greater Serbia; and Serb
nationalism was beginning to mobilize forces with the initial aim of
erasing the two Autonomous Provinces - Kosovo and Vojvodina. This set
off a process leading to Yugoslavia's break-up and a cycle of wars
that Belgrade has pursued to this day. We publish these extracts in
order to show that Seselj's account shows clearly how the 1974
Yugoslav Constitution provides a far stronger case for Kosovo's
independence than it does for its inclusion in Serbia or the FRY.
Within the Yugoslav Federation, Kosovo was equal to Slovenia, Croatia,
Macedonia, etc. in all that was important, since the Autonomous
Provinces had equal rights and obligations, the same governmental
(legislative and executive) structures, and the same representation at
the Federal level as the Republics. So far as Yugoslavia was
concerned, Seselj notes, Republics and Provinces were 'equal subjects
differing only in name'. If, as the Badinter Commission was to
pronounce at the end of 1991, the Yugoslav Federation had dissolved
into its component parts, these could only be the constituent units of
the Federation, of which Kosovo was one.
It is true, as Seselj argues below, that this constitutional equality
of Republics and Provinces involved a contradiction, which could be
solved in only two ways: either by making the Provinces fully-fledged
Republics, or by removing their Federal status. The Federal system had
in actual fact been evolving in the direction of the former option, of
full emancipation of the Provinces (and consequent reduction of the
Republic of Serbia to its Serbian component): in the mid 1980s, Seselj
writes, they were 'only a step away' from this. Milosevic, however, in
a radical assault on the existing constitutional set-up, sought to
enforce the latter option and, when Kosovo resisted, went one step
further and placed it under direct rule from Belgrade. But as Seselj
points out, the Yugoslav Constitution specifically denied to the
Republic of Serbia the right to alter independently Kosovo's status
within the Republic: for any such change to become legal, it was
'necessary first to change the Federal Constitution'. This never
happened. At the moment of Yugoslavia's disintegration, therefore, the
status of the Autonomous Provinces - their relationship to the
Federation and to the Republic of Serbia - remained as it had been
since 1974. Serbia's occupation of Kosovo was then, and remained an
illegal and constitutionally invalid act. Given the inherent
sovereignty of the Autonomous Provinces under the Constitution,
stressed here by Seselj, neither the Federation itself nor the
Republic of Serbia had any right to intervene in Kosovo without the
permission of the Province's own legal authorities. Opponents of the
independence of Kosovo know that this is the case. They nevertheless
like to pretend that Kosovo is an integral part of Serbia; that
Serbia's intervention in Kosovo was a lawful, albeit brutal, defence
of sovereign territory; and that Kosovo's struggle for independence is
a dangerous case of 'separatism'. But it should be recalled that in
1991, when Slovenia and Croatia declared their independence, they too
were denounced as 'separatist'. JNA top brass visiting London and
Paris were given a green light to use force against them. Some
governments were happy to let Dubrovnik be attacked, Vukovar be
destroyed, Karadzic's genocidal forces be armed, thousands of people
be killed and hundreds of thousands displaced, in the delusion that
Belgrade's actions were all conducive to 'stability in the Balkans'.
And then in 1992, after all, not just those two republics but Bosnia-
Herzegovina and Macedonia as well were recognized within their
borders, with legal arguments for their recognition derived from the
Yugoslav Constitution. Yet today - despite and in opposition to that
same Constitution – some in Europe still uphold Serbia's claim to
Kosovo.
The Yugoslav Federation and its Republics and Provinces
by Vojislav Seselj (1985)
The form of federal arrangement evolved throughout the post-war
building of the political system, but in 1974 a radical turn was made,
in that classic elements of confederalism were introduced into the
Yugoslav Federation, with a tendency to predominate; as a result it
has been made dependent on the cooperation of increasingly independent
socialist Republics and Autonomous Provinces, with special emphasis on
idealistically understood principle of consensus.1[...]
This has led naturally and inevitably to restrictions in the
functioning of the Federal state, evident in the desire of the
individual administrations to participate on an equal basis in the
execution of its crucial tasks; evident in the control exercised by
the Republics and Autonomous Provinces over the work of the Federal
organs via their representatives, who are responsible to the
Republican and Provincial leaderships [Assemblies]; evident in the
fact that the Federal organs act on the basis of decisions made by
consensus, or through direct 'negotiations', between the Republics and
Autonomous Provinces. [...]
At the same time the 1974 Constitution equalizes de facto the legal
and political status of the Socialist Republics and Autonomous
Provinces. Formally, the Provinces are part of the Republic of Serbia,
but they are also constituent elements of the Federation in a way that
makes the relationship between them and Serbia purely nominal. It
would be logical that they, being part of the Republic, should realize
their rights and duties at the Federal level through the Republic,
which would then appear at the Federal level as an indivisible whole.
As things are, however, they realize these rights and duties in a dual
fashion - through the Republic, and independently as well - which is
unprecedented in legal-political theory and practice.
In Article 2 of the Constitution, the Republics are named and then the
Autonomous Provinces, which - in a mere repetition of the formulation
in Article 1 - are described as 'part' of the Socialist Republic of
Serbia. It is true that Article 3 states unambiguously that a Republic
is a state and then, in Article 4, that an Autonomous Province is an
'autonomous socialist, self-managing, democratic social-political
community, based on the rule and self-management of the working class
and all working people, within which the working people and citizens,
nations and nationalities realize their sovereign rights - while, when
this is in the interest of the working people and citizens, nations
and nationalities of the Republic as a whole, [they do so] also in the
Republic, as determined by the constitution of the Socialist Republic
of Serbia.'
It follows from this provision that the primary realization of
sovereign rights, i.e. of the sovereignty of the working people and
citizens, takes place within the Autonomous Province - and in the
Republic only to the extent that this does not contradict the former.
The Constitution nowhere specifies that Autonomous Provinces are
states, but neither does it deny this, except that it says that they
are part of the Republic of Serbia, which, therefore - since this is
nowhere and in no way excluded - could theoretically be considered as
a kind of sub-federal republic, or a state which, while federative in
its internal structure, is part of a wider, quasi-federal state
formation. This raises the question also of whether there is any
essential difference between the concept of '[Republic or] state' and
that of an 'autonomous, socialist, self-managing, democratic social-
political community, in which working people and citizens, nations and
nationalities realize their sovereign rights'.
This determination of the status of the Autonomous Provinces is in
evident collision with Article 5, the first paragraph of which states:
'The territory of the Federated Republic of Yugoslavia [SFRJ] is a
single whole made up of the territories of the Socialist Republics.'
This means that the Autonomous Provinces do not appear as constituent
elements of the Federal state, since otherwise it would say that their
territories too form the SFRJ. For this reason the eventual
establishment and suspension of Autonomous Provinces should both be
prerogatives of the Republic in which they find themselves. It is
necessary to remove these contradictions from the [Federal]
Constitution as soon as possible, and we believe that the only right
way forward is to deny to the Autonomous Provinces their character as
constituent elements of the Federation [...]. Related to this we
consider it unnecessary for the Autonomous Provinces to be constantly
named or described as part of Serbia, because one should leave open
the possibility that new ones could be formed within another Republic
[or the existing ones in the Republic of Serbia dissolved], and that
for this to happen it should not be necessary [as it is now] first to
change the Federal constitution, but only the constitution of the
given Republic. [...]
If Republics are sovereign states within the SFRJ, then the status of
[the Republic of] Serbia, which alone contains Autonomous Provinces,
is de facto unequal, given that the SFRJ Constitution imposes limits
upon its exercise of sovereign rights to the extent that it
establishes the constitutional status of the Autonomous Provinces,
i.e. in that it prevents it from independently altering that status,
while similar restrictions do not apply to the other Republics. [...]
Subsequent articles of the Constitution, which de facto equalize the
original and inalienable rights and duties of the Republics with the
rights and duties of the Autonomous Provinces, are also essentially
contrary to the provision according to which the Autonomous Provinces
are part of the Socialist Republic of Serbia. It is, therefore, not at
all accidental that in the current political terminology Republics and
Autonomous Provinces appear as equal subjects differing only by name.
To begin with, the structure of the governmental and 'self-management'
organs in the Autonomous Provinces is identical to that of the
Republics, while in the Federal organs - Presidency, Assembly,
Executive Council [government], etc. - there is an equal or
proportional representation of the Republics and the Autonomous
Provinces ('proportional' refers only to the unequal number of
delegates in certain bodies, but this has no particular legal or
political effect).
The fact that the Federal Council is made up of thirty delegates from
each Republic and twenty from each Autonomous Province, while the
Council of Republics and Autonomous Provinces is made up of twelve
delegates from each Republic and eight from each Autonomous Province,
is of no practical significance, especially where the Council of
Republics and Provinces is concerned, since decisions are made there
by consensus of all the delegations. Since the Assembly of the
Socialist Republic [SR] of Serbia includes also delegates from the
Autonomous Provinces, and since the interests which its delegates
represent at the Federal level are joint interests of 'all the nations
and nationalities' living on its territory (i.e. within and outside
the Autonomous Provinces), this dual link [to the Federation] is
unnecessary, since it denies to the SR of Serbia the [exclusive] right
to represent the Republic as a whole and reduces it de facto to the
delegates of so-called 'narrower Serbia'.
Direct representation of Autonomous Provinces at the Federal level
would be logical and justified only in the event that the territory of
a Socialist Autonomous Province lay outside all Republics, i.e. if it
were truly independent. Just how absurd the present day constitutional
arrangement is can be illustrated by the fact that, hypothetically
speaking, the Assembly of SR Serbia, respecting the principle of
'democratic' procedure, could reach a general political position
'based on the interests of the Republic as a whole' and take this to
the Federal level, only to find there delegates or delegations from
the Autonomous Provinces defending an opposite stance, confronting in
this artificial manner the interests of the Republic with those of
Autonomous Provinces that are a part of it. Regardless of the fact
that the Republican Assembly is practically unable to decide on any
matter that refers to the Republican territory as a whole without
gaining first the consent of the Autonomous Provinces, its delegates
at the Federal level are in a position to represent only the interests
of 'Serbia without the Provinces' or 'narrower Serbia', as it has
become customary to call it, despite the fact that from a legal point
of view such an entity does not exist.
If the Assembly of [the Republic of] Serbia is indeed the highest
organ of government and self-management in regard to the rights and
duties of the Republic as a social-political community, i.e. state, on
the territory of [the Republic of] Serbia as a whole, then the
provision that specifies equal or appropriate representation of the
Autonomous Provinces at the Federal level is untenable, since it
provides the Autonomous Provinces with basic state attributes that
should belong only to the Republics that make up the Federation. This
formulation in particular has been used to derive other attributes of
the Autonomous Provinces which makes it possible to define them also
as 'nascent republics'; and it is probable that, if subsequent
constitutional changes were to follow the pattern established in 1971
and 1974, the Autonomous Provinces could formally acquire the status
of Republics, which is in any case only a step away from their present-
day status. That this could indeed happen is fully confirmed by the
fact that in 1974 the Autonomous Provinces have acquired their own
constitutions and that their Assemblies make laws, so that the recent
seemingly naive demands for provincial flags and anthems should be
seen as part of their planned transformation, 'when social conditions
become ripe', into independent Republics. [. . .]
It seems to me that [Yugoslav] contemporary political theory and
practice purposefully neglect a datum of great historical
significance, which is that the Autonomous Provinces were not
established by a Federal legal act but, on the contrary, by a separate
law of 1945 brought in by the People's Assembly of Serbia, and
subsequently only confirmed by the 1946 constitution of the Federative
People's Republic of Yugoslavia, which guaranteed their autonomous
rights and determined the basic principles of their organization, as
it did for all socio- political communities from the global to the
local, which is no longer the case today.2 The 1963 constitution gave
the Provincial assemblies the right to send their representatives to
the Peoples' Council of the Federal Assembly, but only as part of the
Republican delegation. That constitution unambiguously stated that
internal organization of the Provinces was the exclusive right of the
Republic, and that the Republican constitution decided their rights
and duties and the basic principle of their administration. The
Federal constitution regulated only their formation or dissolution. It
was only in 1968 that constitutional amendments introduced the notion
of a 'free association of the Autonomous Provinces within SR Serbia',
as if they had existed before or regardless of SR Serbia.3 In this
way, by way of the 1968 and 1971 amendments and the Constitution of
1974, a concept of so-called twin-level federalism was developed, with
the Autonomous Provinces becoming increasingly independent and
acquiring the essential characteristics of the Republics.
The current counter-revolutionary demands, including that one of them
[Kosovo] be proclaimed a Republic, can thus be seen as a direct
consequence of a broader political direction forged over a long time
within the narrowest political cen- tre. Hence, although one cannot
quite say that the 1974 Constitution makes the Autonomous Provinces
fully equal to the Republics, one can reasonably state that they have
been made almost equal, since in everyday practice the differences
that exist between them are unimportant and secondary. All the rights
and duties which a Republic exercises on its territory the Autonomous
Provinces exercise on theirs (thereby encroaching upon [the Republic
of] Serbia's rights and sovereignty). They are limited only to the
extent that the Republics too are limited: i.e. they cannot take over
Federal or local municipal competencies, or alter the constitutionally
guaranteed rights and freedoms of men and citizens. As a result,
restriction of the Provinces' rights in matters of interest for the
Republic as a whole has become a mere formality, in practice never
exercised. In this way conditions are being created for the final
withering of the remaining links between the Provinces and the
Republic of Serbia.
For a long time the constitutional norms in our country did not have
the constitutional significance provided by international theory and
practice. They were changed in line with the will, wishes and not
infrequently whims of the most powerful leaders of the bureaucratic
apparatus. Today, however, this is no longer possible, and we are now
in a position to uncover the consequences of the indisputable fact
that our constitutions were written by extremely uneducated,
irresponsible and incompetent people who subjected legal norms to the
most banal political manipulations.4
Footnotes:
1. All italics in the extracts translated here were present in the
original.
2. This is an inaccurate rendering of the past. At the time in
question, Serbia was unable autonomously to decide anything. Moreover,
it was not at all obvious that the newly established Republic of
Serbia should include Kosovo and Vojvodina. The fact that in the event
it did so was due to a Yugoslav, not a Serbian, decision. It is indeed
doubtful that Serbia, which in 1945 found itself with no army of its
own (the great bulk of the Partisan Army having been recruited in
other republics, mainly in Bosnia-Herzegovina and Croatia), could ever
have held on to Kosovo without Yugoslav help, in view of the
population's overwhelming desire - expressed in a series of armed
revolts - to join Albania.
3. See note 4 above.
4. The truth is that during this period the Republic of Serbia had an
exceptionally well educated, responsible and able leadership,
represented by Marko Nikezic and Latinka Perovic, which in 1971 was
purged on the grounds of 'excessive liberalism'. Nikezic unfortunately
died in January 1991, just before Perovic published her book Closing
the Circle: the Outcome of the 1971-2 Split (Belgrade 1991), which
discusses the constitutional changes of that period in the context of
a more general effort to democratize the Yugoslav system. It is
unfortunate that her book has not been translated into English, not
least because it makes clear that the decision to give the two
Autonomous Provinces direct representation at the Federal level was
taken with Serbia's consent and for the sake of its own development.
1974 Constitution equalized the legal and political status of Serbia
and Kosovo
Written by Editor
“The Constitution of 1974 nowhere specifies that Autonomous Provinces
are states, but neither does it deny this, except that it says that
they are part of the Republic of Serbia, which, therefore - since this
is nowhere and in no way excluded - could theoretically be considered
as a kind of sub-federal republic, or a state which, while federative
in its internal structure, is part of a wider, quasi-federal state
formation.”
(Vojislav Seselj)
by Branka Magas
We publish below extracts from a pamphlet titled “What is to be done?”
which set out in an exceptionally clear and succinct manner the
position that Kosovo enjoyed in the former Yugoslavia, and why Serb
nationalists found it unacceptable. Written by Vojislav Seselj, the
now notorious leader of the Serb Radical Party which governed Serbia
in coalition with Slobodan Milosevic's Socialist Party of Serbia and
Mrs Milosevic's Yugoslav United Left, it was first published in 1985
by a London-based journal Nasa Rec [Our Word]. At the time of its
appearance, Seselj was serving a prison sentence for, among other
things, advocating Bosnia-Herzegovina's disappearance; the Serbian
Academy of Arts and Sciences was busy writing the Memorandum that
provided the ideological justification for a Greater Serbia; and Serb
nationalism was beginning to mobilize forces with the initial aim of
erasing the two Autonomous Provinces - Kosovo and Vojvodina. This set
off a process leading to Yugoslavia's break-up and a cycle of wars
that Belgrade has pursued to this day. We publish these extracts in
order to show that Seselj's account shows clearly how the 1974
Yugoslav Constitution provides a far stronger case for Kosovo's
independence than it does for its inclusion in Serbia or the FRY.
Within the Yugoslav Federation, Kosovo was equal to Slovenia, Croatia,
Macedonia, etc. in all that was important, since the Autonomous
Provinces had equal rights and obligations, the same governmental
(legislative and executive) structures, and the same representation at
the Federal level as the Republics. So far as Yugoslavia was
concerned, Seselj notes, Republics and Provinces were 'equal subjects
differing only in name'. If, as the Badinter Commission was to
pronounce at the end of 1991, the Yugoslav Federation had dissolved
into its component parts, these could only be the constituent units of
the Federation, of which Kosovo was one.
It is true, as Seselj argues below, that this constitutional equality
of Republics and Provinces involved a contradiction, which could be
solved in only two ways: either by making the Provinces fully-fledged
Republics, or by removing their Federal status. The Federal system had
in actual fact been evolving in the direction of the former option, of
full emancipation of the Provinces (and consequent reduction of the
Republic of Serbia to its Serbian component): in the mid 1980s, Seselj
writes, they were 'only a step away' from this. Milosevic, however, in
a radical assault on the existing constitutional set-up, sought to
enforce the latter option and, when Kosovo resisted, went one step
further and placed it under direct rule from Belgrade. But as Seselj
points out, the Yugoslav Constitution specifically denied to the
Republic of Serbia the right to alter independently Kosovo's status
within the Republic: for any such change to become legal, it was
'necessary first to change the Federal Constitution'. This never
happened. At the moment of Yugoslavia's disintegration, therefore, the
status of the Autonomous Provinces - their relationship to the
Federation and to the Republic of Serbia - remained as it had been
since 1974. Serbia's occupation of Kosovo was then, and remained an
illegal and constitutionally invalid act. Given the inherent
sovereignty of the Autonomous Provinces under the Constitution,
stressed here by Seselj, neither the Federation itself nor the
Republic of Serbia had any right to intervene in Kosovo without the
permission of the Province's own legal authorities. Opponents of the
independence of Kosovo know that this is the case. They nevertheless
like to pretend that Kosovo is an integral part of Serbia; that
Serbia's intervention in Kosovo was a lawful, albeit brutal, defence
of sovereign territory; and that Kosovo's struggle for independence is
a dangerous case of 'separatism'. But it should be recalled that in
1991, when Slovenia and Croatia declared their independence, they too
were denounced as 'separatist'. JNA top brass visiting London and
Paris were given a green light to use force against them. Some
governments were happy to let Dubrovnik be attacked, Vukovar be
destroyed, Karadzic's genocidal forces be armed, thousands of people
be killed and hundreds of thousands displaced, in the delusion that
Belgrade's actions were all conducive to 'stability in the Balkans'.
And then in 1992, after all, not just those two republics but Bosnia-
Herzegovina and Macedonia as well were recognized within their
borders, with legal arguments for their recognition derived from the
Yugoslav Constitution. Yet today - despite and in opposition to that
same Constitution – some in Europe still uphold Serbia's claim to
Kosovo.
The Yugoslav Federation and its Republics and Provinces
by Vojislav Seselj (1985)
The form of federal arrangement evolved throughout the post-war
building of the political system, but in 1974 a radical turn was made,
in that classic elements of confederalism were introduced into the
Yugoslav Federation, with a tendency to predominate; as a result it
has been made dependent on the cooperation of increasingly independent
socialist Republics and Autonomous Provinces, with special emphasis on
idealistically understood principle of consensus.1[...]
This has led naturally and inevitably to restrictions in the
functioning of the Federal state, evident in the desire of the
individual administrations to participate on an equal basis in the
execution of its crucial tasks; evident in the control exercised by
the Republics and Autonomous Provinces over the work of the Federal
organs via their representatives, who are responsible to the
Republican and Provincial leaderships [Assemblies]; evident in the
fact that the Federal organs act on the basis of decisions made by
consensus, or through direct 'negotiations', between the Republics and
Autonomous Provinces. [...]
At the same time the 1974 Constitution equalizes de facto the legal
and political status of the Socialist Republics and Autonomous
Provinces. Formally, the Provinces are part of the Republic of Serbia,
but they are also constituent elements of the Federation in a way that
makes the relationship between them and Serbia purely nominal. It
would be logical that they, being part of the Republic, should realize
their rights and duties at the Federal level through the Republic,
which would then appear at the Federal level as an indivisible whole.
As things are, however, they realize these rights and duties in a dual
fashion - through the Republic, and independently as well - which is
unprecedented in legal-political theory and practice.
In Article 2 of the Constitution, the Republics are named and then the
Autonomous Provinces, which - in a mere repetition of the formulation
in Article 1 - are described as 'part' of the Socialist Republic of
Serbia. It is true that Article 3 states unambiguously that a Republic
is a state and then, in Article 4, that an Autonomous Province is an
'autonomous socialist, self-managing, democratic social-political
community, based on the rule and self-management of the working class
and all working people, within which the working people and citizens,
nations and nationalities realize their sovereign rights - while, when
this is in the interest of the working people and citizens, nations
and nationalities of the Republic as a whole, [they do so] also in the
Republic, as determined by the constitution of the Socialist Republic
of Serbia.'
It follows from this provision that the primary realization of
sovereign rights, i.e. of the sovereignty of the working people and
citizens, takes place within the Autonomous Province - and in the
Republic only to the extent that this does not contradict the former.
The Constitution nowhere specifies that Autonomous Provinces are
states, but neither does it deny this, except that it says that they
are part of the Republic of Serbia, which, therefore - since this is
nowhere and in no way excluded - could theoretically be considered as
a kind of sub-federal republic, or a state which, while federative in
its internal structure, is part of a wider, quasi-federal state
formation. This raises the question also of whether there is any
essential difference between the concept of '[Republic or] state' and
that of an 'autonomous, socialist, self-managing, democratic social-
political community, in which working people and citizens, nations and
nationalities realize their sovereign rights'.
This determination of the status of the Autonomous Provinces is in
evident collision with Article 5, the first paragraph of which states:
'The territory of the Federated Republic of Yugoslavia [SFRJ] is a
single whole made up of the territories of the Socialist Republics.'
This means that the Autonomous Provinces do not appear as constituent
elements of the Federal state, since otherwise it would say that their
territories too form the SFRJ. For this reason the eventual
establishment and suspension of Autonomous Provinces should both be
prerogatives of the Republic in which they find themselves. It is
necessary to remove these contradictions from the [Federal]
Constitution as soon as possible, and we believe that the only right
way forward is to deny to the Autonomous Provinces their character as
constituent elements of the Federation [...]. Related to this we
consider it unnecessary for the Autonomous Provinces to be constantly
named or described as part of Serbia, because one should leave open
the possibility that new ones could be formed within another Republic
[or the existing ones in the Republic of Serbia dissolved], and that
for this to happen it should not be necessary [as it is now] first to
change the Federal constitution, but only the constitution of the
given Republic. [...]
If Republics are sovereign states within the SFRJ, then the status of
[the Republic of] Serbia, which alone contains Autonomous Provinces,
is de facto unequal, given that the SFRJ Constitution imposes limits
upon its exercise of sovereign rights to the extent that it
establishes the constitutional status of the Autonomous Provinces,
i.e. in that it prevents it from independently altering that status,
while similar restrictions do not apply to the other Republics. [...]
Subsequent articles of the Constitution, which de facto equalize the
original and inalienable rights and duties of the Republics with the
rights and duties of the Autonomous Provinces, are also essentially
contrary to the provision according to which the Autonomous Provinces
are part of the Socialist Republic of Serbia. It is, therefore, not at
all accidental that in the current political terminology Republics and
Autonomous Provinces appear as equal subjects differing only by name.
To begin with, the structure of the governmental and 'self-management'
organs in the Autonomous Provinces is identical to that of the
Republics, while in the Federal organs - Presidency, Assembly,
Executive Council [government], etc. - there is an equal or
proportional representation of the Republics and the Autonomous
Provinces ('proportional' refers only to the unequal number of
delegates in certain bodies, but this has no particular legal or
political effect).
The fact that the Federal Council is made up of thirty delegates from
each Republic and twenty from each Autonomous Province, while the
Council of Republics and Autonomous Provinces is made up of twelve
delegates from each Republic and eight from each Autonomous Province,
is of no practical significance, especially where the Council of
Republics and Provinces is concerned, since decisions are made there
by consensus of all the delegations. Since the Assembly of the
Socialist Republic [SR] of Serbia includes also delegates from the
Autonomous Provinces, and since the interests which its delegates
represent at the Federal level are joint interests of 'all the nations
and nationalities' living on its territory (i.e. within and outside
the Autonomous Provinces), this dual link [to the Federation] is
unnecessary, since it denies to the SR of Serbia the [exclusive] right
to represent the Republic as a whole and reduces it de facto to the
delegates of so-called 'narrower Serbia'.
Direct representation of Autonomous Provinces at the Federal level
would be logical and justified only in the event that the territory of
a Socialist Autonomous Province lay outside all Republics, i.e. if it
were truly independent. Just how absurd the present day constitutional
arrangement is can be illustrated by the fact that, hypothetically
speaking, the Assembly of SR Serbia, respecting the principle of
'democratic' procedure, could reach a general political position
'based on the interests of the Republic as a whole' and take this to
the Federal level, only to find there delegates or delegations from
the Autonomous Provinces defending an opposite stance, confronting in
this artificial manner the interests of the Republic with those of
Autonomous Provinces that are a part of it. Regardless of the fact
that the Republican Assembly is practically unable to decide on any
matter that refers to the Republican territory as a whole without
gaining first the consent of the Autonomous Provinces, its delegates
at the Federal level are in a position to represent only the interests
of 'Serbia without the Provinces' or 'narrower Serbia', as it has
become customary to call it, despite the fact that from a legal point
of view such an entity does not exist.
If the Assembly of [the Republic of] Serbia is indeed the highest
organ of government and self-management in regard to the rights and
duties of the Republic as a social-political community, i.e. state, on
the territory of [the Republic of] Serbia as a whole, then the
provision that specifies equal or appropriate representation of the
Autonomous Provinces at the Federal level is untenable, since it
provides the Autonomous Provinces with basic state attributes that
should belong only to the Republics that make up the Federation. This
formulation in particular has been used to derive other attributes of
the Autonomous Provinces which makes it possible to define them also
as 'nascent republics'; and it is probable that, if subsequent
constitutional changes were to follow the pattern established in 1971
and 1974, the Autonomous Provinces could formally acquire the status
of Republics, which is in any case only a step away from their present-
day status. That this could indeed happen is fully confirmed by the
fact that in 1974 the Autonomous Provinces have acquired their own
constitutions and that their Assemblies make laws, so that the recent
seemingly naive demands for provincial flags and anthems should be
seen as part of their planned transformation, 'when social conditions
become ripe', into independent Republics. [. . .]
It seems to me that [Yugoslav] contemporary political theory and
practice purposefully neglect a datum of great historical
significance, which is that the Autonomous Provinces were not
established by a Federal legal act but, on the contrary, by a separate
law of 1945 brought in by the People's Assembly of Serbia, and
subsequently only confirmed by the 1946 constitution of the Federative
People's Republic of Yugoslavia, which guaranteed their autonomous
rights and determined the basic principles of their organization, as
it did for all socio- political communities from the global to the
local, which is no longer the case today.2 The 1963 constitution gave
the Provincial assemblies the right to send their representatives to
the Peoples' Council of the Federal Assembly, but only as part of the
Republican delegation. That constitution unambiguously stated that
internal organization of the Provinces was the exclusive right of the
Republic, and that the Republican constitution decided their rights
and duties and the basic principle of their administration. The
Federal constitution regulated only their formation or dissolution. It
was only in 1968 that constitutional amendments introduced the notion
of a 'free association of the Autonomous Provinces within SR Serbia',
as if they had existed before or regardless of SR Serbia.3 In this
way, by way of the 1968 and 1971 amendments and the Constitution of
1974, a concept of so-called twin-level federalism was developed, with
the Autonomous Provinces becoming increasingly independent and
acquiring the essential characteristics of the Republics.
The current counter-revolutionary demands, including that one of them
[Kosovo] be proclaimed a Republic, can thus be seen as a direct
consequence of a broader political direction forged over a long time
within the narrowest political cen- tre. Hence, although one cannot
quite say that the 1974 Constitution makes the Autonomous Provinces
fully equal to the Republics, one can reasonably state that they have
been made almost equal, since in everyday practice the differences
that exist between them are unimportant and secondary. All the rights
and duties which a Republic exercises on its territory the Autonomous
Provinces exercise on theirs (thereby encroaching upon [the Republic
of] Serbia's rights and sovereignty). They are limited only to the
extent that the Republics too are limited: i.e. they cannot take over
Federal or local municipal competencies, or alter the constitutionally
guaranteed rights and freedoms of men and citizens. As a result,
restriction of the Provinces' rights in matters of interest for the
Republic as a whole has become a mere formality, in practice never
exercised. In this way conditions are being created for the final
withering of the remaining links between the Provinces and the
Republic of Serbia.
For a long time the constitutional norms in our country did not have
the constitutional significance provided by international theory and
practice. They were changed in line with the will, wishes and not
infrequently whims of the most powerful leaders of the bureaucratic
apparatus. Today, however, this is no longer possible, and we are now
in a position to uncover the consequences of the indisputable fact
that our constitutions were written by extremely uneducated,
irresponsible and incompetent people who subjected legal norms to the
most banal political manipulations.4
Footnotes:
1. All italics in the extracts translated here were present in the
original.
2. This is an inaccurate rendering of the past. At the time in
question, Serbia was unable autonomously to decide anything. Moreover,
it was not at all obvious that the newly established Republic of
Serbia should include Kosovo and Vojvodina. The fact that in the event
it did so was due to a Yugoslav, not a Serbian, decision. It is indeed
doubtful that Serbia, which in 1945 found itself with no army of its
own (the great bulk of the Partisan Army having been recruited in
other republics, mainly in Bosnia-Herzegovina and Croatia), could ever
have held on to Kosovo without Yugoslav help, in view of the
population's overwhelming desire - expressed in a series of armed
revolts - to join Albania.
3. See note 4 above.
4. The truth is that during this period the Republic of Serbia had an
exceptionally well educated, responsible and able leadership,
represented by Marko Nikezic and Latinka Perovic, which in 1971 was
purged on the grounds of 'excessive liberalism'. Nikezic unfortunately
died in January 1991, just before Perovic published her book Closing
the Circle: the Outcome of the 1971-2 Split (Belgrade 1991), which
discusses the constitutional changes of that period in the context of
a more general effort to democratize the Yugoslav system. It is
unfortunate that her book has not been translated into English, not
least because it makes clear that the decision to give the two
Autonomous Provinces direct representation at the Federal level was
taken with Serbia's consent and for the sake of its own development.
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