Declaration and cessation

The Constitution of Serbia vests the National Assembly with the au-thority to declare the states of necessity.⁴ In the case that the Assembly is unable to convene, a body consisting of the President of the Repub-lic, the Prime Minister and the President of the National Assembly can declare them instead.⁵ Additionally, there is a safeguard for the state of emergency – if the decision to declare a state of emergency was not made by the National Assembly, it has to be confi rmed by it within 48 hours or as soon as it is able to convene. If the Assembly does not confi rm it until the end of the fi rst session following the declaration, the state of emergency will cease ex constitutione.⁶ Some rules regarding this procedure are contained in the Law on defense. This law provides for the possibility to declare the state of emergency on a specifi c part of the territory of Serbia, rather than the whole of its territory. Further-more, it specifi es that the declaration of the states of necessity is based upon a proposal made jointly by the Cabinet and the President of the Republic.⁷

Apart from these formal (procedural) requirements, there are also substantive conditions which have to be met. These conditions are cru-cial since they defi ne the nature of the states of necessity and determine when they can be declared. The fi rst paragraph of article 200 of the Constitution contains a defi nition of a state of emergency: “When pub-lic danger threatens the existence of the State or its citizens, the Nation-al Assembly shNation-all declare a state of emergency”. This provision is rath-er vague, since it does not defi ne what constitutes “public dangrath-er”, and that already allows for political abuse. Better defi nitions can be found

4 Ibidem, art. 200 par. 1; art. 201 par. 1.

5 In this instance, there is a slight difference between the two articles. Namely, the state of emergency is declared by the substitute body “under the same conditions” as the National Assembly, while no such distinction is made for the state of war. Since the Constitution does not state what other conditions are applied in this case, we can only assume that the state of war is indeed declared under the same conditions and attribute the different phrasing to an editorial mistake. Ibidem, art. 200 par. 5; art. 201 par. 2.

6 Ibidem, art. 200 par. 8.

7 Law on defense – Zakon o odbrani, “Službeni Glasnik”, Vol. 117, Belgrade 2007, art. 11 par. 1.

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in both the previous constitution⁸ and the Law on defense, which elabo-rates upon the aforementioned provision by adding that public danger is a “consequence of military or non-military challenges, risks and threats to security”,⁹ thus mitigating the vagueness of the Constitution.

In contrast, a defi nition of a state of war cannot be found in either constitution. Again, the Law on defense takes up this role:

A state of war is a state of danger brought about by foreign use of armed action, during which the sovereignty, independence or territorial integrity of the State as well as peace in the region is threatened, and which requires the mobilization of forces and resources for defense.¹⁰

Although this rather clumsy defi nition is more than suffi ciently de-tailed, it is also very wide in scope, particularly so because it includes

“threats to peace in the region”. Nevertheless, it does provide us with a guideline for determining what circumstances can be the basis for declaring a state of war. Unfortunately, since both defi nitions are found only in statute and not in the Constitution, they can be changed all too easily. This, again, leaves room for political manipulation. Therefore, the substantive requirements for declaring the states of necessity may be judged as inadequate, and should be more clearly defi ned within the constitution itself.

As opposed to the substantive conditions, the formal requirements for declaring the states of necessity are mostly adequate. They are not, however, without fault. First of all, it is not clear why the President of the National Assembly was included in the substitute body for declaring the states of necessity. This inclusion marks a departure from the previ-ous constitution, and has already been publically criticized.¹¹ Because the President of the National Assembly is simply a chairman of a col-legial body, and therefore not legally representative of any perceived majority opinion, he clearly has less democratic legitimacy than the other two members. This creates a further problem since the substitute body is now made up of three offi cials, rather than two, and the Consti-tution does not clearly state if their decisions are made unanimously or

8 “(…) a threat to the security of the Republic of Serbia, the rights and liberties of its citizens or the functioning of State agencies”. Constitution of 1990, art. 83 par. 8.

9 Law on defense, art. 4 par. 6.

10 Ibidem, art. 4 par. 7.

11 R. Marković, Republic of Serbia..., p. 39.

173 by majority. Namely, paragraph 5 of article 200 states that the decision is made by the three offi cials “jointly”, which suggests that unanimity is required. However, at the end of the same paragraph, it is stated that the substitute body declares the states of necessity “under the same con-ditions as the National Assembly”, the formal condition being a simple majority of votes. Taking this into account, it would seem that two votes out three would suffi ce. If so, another problem is created – because the President of the Assembly also acts as a replacement for the President of the Republic (if he is unable to perform his duties, has been im-peached or has stepped down, for a maximum period of three months),¹² a concentration of power in his hands is possible. This eventuality, al-though unlikely, is not permissible. Therefore, it seems preferable to exclude the President of the Assembly from the substitute body or, at least, to underline the necessity for unanimous decision.

There are further problems concerning the formal procedure. It is unclear why the National Assembly is required to confi rm only the state of emergency and not both states of necessity. We can only assume that the authors of the Constitution considered war to be something so urgent and self-evident that there should be no need to confi rm it (or even de-fi ne it). Still, the declaration of the states of necessity can, on the whole, be judged as adequate – it is essentially under the control ofthe National Assembly, the directly elected legislative body, and does not allow for abuse by either the President of the Republic or the Cabinet.

The rules regarding the cessation of the states of necessity refl ect the inherent differences between the two. While there is no way to deter-mine how long a war – and therefore the state of war – will last, restric-tions on the duration of the state of emergency are necessary in order to prevent an indefi nite suspension of law. The Constitution limits the state of emergency to a period of 90 days, after which it ends automatically.

However, the National Assembly can, by absolute majority, extend the state of emergency for another 90 days.¹³ Although a total period of 180 days seems excessively long, it is perhaps better to have the state of emergency last longer, than for it to end ex constitutione before the emergency itself is resolved. Naturally, the Assembly can decide to end the state before the expiration of either period. As for the state of war,

12 Constitution of 2006, art. 120.

13 Ibidem, art. 200 par. 2.

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there are no constitutional provisions regarding its cessation. One can assume that since the state of war is declared by the National Assembly, it is also in its authority to end it, though this is not stated. Another issue is that when a state of war should cease is not specifi ed. Even though it is impossible to determine its duration, it is advisable to assert a com-pulsory end to the state of war after the cessation of hostilities, in order to prevent its extension into peacetime (which in fact has often been the case).¹⁴ Again, the lack of constitutional provisions in this regard leaves room for political abuse.

In terms of cessation of the states of necessity, the Constitution of Serbia is rather imprecise. As with the requirements for their declara-tion, there is evidently a lack of constitutional provisions, especially concerning the state of war. This defi ciency has created considerable

“legal space” for political manipulation of the states of necessity. Nev-ertheless, the present Constitution represents a signifi cant improvement over its predecessor, which contained very few provisions in this re-gard. Ultimately, the problems associated with declaring and ending the states are not of great importance, and are, as we shall see, rendered practically irrelevant by the institutional consequences of the states of necessity.