Slobodan Vučetić

THE SYSTEM OF SEPARATION OF POWERS IN SERBIA AND THE FEDERAL REPUBLIC OF YUGOSLAVIA IN THE LIGHT OF THE FORTHCOMING REFORMS

In the constitutional theory and practice of modern states, based on the rule of law, the separation of powers is the fundamental principle regulating the organization of government and the relationship among its three branches (legislative, executive and judicial). In order to avoid or substantially reduce the misuse of power, it is necessary to separate three branches of government so as to be independent in the performance of their constitutional functions, while at the same time providing for checks and balances. In this way, the overall state authority will not lose the character of an organizational and functional whole. Namely, it is the question of the distribution of governmental powers and functions or, in other words, the division of labour applied to the bodies of government. This prevents the concentration of power in one person or one body and the arbitrary exercise of power, while at the same time establishing checks and balances in a system of the separation of powers. As regards the organizational and functional relationships of three branches of government, the central issue in modern states based on the rule of law is the relationship between the legislative and executive powers. These two branches are of a political character and, in a parliamentary system of government, they are characterized by a direct functional relationship, relatively high degree of interdependence, as well as checks and balances. In modern practice, this equilibrium is seriously disrupted by the increasingly stronger role of the executive power which, as an emanation of the parliamentary majority, dominates the parliamentary power and reduces it frequently to its executive, voting mechanism. In contrast to the relationship between these two branches, the judicial power is autonomous in its work in relation to the other two, essentially political branches and is bound only by the constitution and law. Of special significance is the role of constitutional courts as the guardians of constitutionality and legality and, thus, the constitutional principle of separation of powers.

I THE PRINCIPLE OF SEPARATION OF POWERS IN THE CONSTITUTION OF THE FEDERAL REPUBLIC OF YUGOSLAVIA AND THE CONSTITUTION OF THE REPUBLIC OF SERBIA<

In contrast to the SFRY Constitution, in which the basic principle of regulating the organization of government was that of a unified system, the Constitution of the FR of Yugoslavia (1992) and the Constitution of the Republic of Serbia (1990) contain the principle of separation of powers. The Constitution of the FR of Yugoslavia (Article 12) has the following provision on the separation of powers: "The organization of government in the Federal Republic of Yugoslavia is based on the principle of its separation into legislative, executive and judicial branches". As for the relationship and manner of exercising the judicial and executive powers, in the regulatory part of the Serbian Constitution (Article 9), the principle of separation of powers is implemented within a parliamentary-presidential system. Considerable differences between these two systems of organization of government brought about considerable differences in the model of separation of powers and its implementation. This refers especially to the separation of executive and legislative powers, as well as of the holders of executive power (i.e. the head of state and the government).

1. The Federal Assembly and the National Assembly of the Republic of Serbia in a System of the Separation of Powers

The Federal Assembly is the holder of legislative power in full capacity. The Constitution of the FR of Yugoslavia (like the republican constitutions) does not provide for the delegation of legislative powers to the Federal Government. The Federal Assembly is also autonomous in the exercise of its constitutional powers, except in cases stipulated by the Constitution - with the consent of the republican assemblies. It also performs other functions being customary in parliamentary systems. In other words, it decides on war and peace, on a state of war, on immediate danger of war and martial law, on alterations of the borders of the FR of Yugoslavia, on alliances with other states and on accession to international organizations. It also performs election functions. Namely, it elects the head of the Federal Government, holders of judicial power and the Governor of the National Bank of Yugoslavia (at the proposal of the President of the FR of Yugoslavia). In addition, it exercises control over the work of the Federal Government.

The National Assembly of the Republic of Serbia also has competence in those matters which are customary in a parliamentary system of government. After the adoption of the federal Constitution and relevant laws, some of these functions (deciding on war and peace and on immediate danger of war, as well as the ratification of international treaties) were assumed by the Federal Assembly. The Serbian Constitution also does not provide for the delegation of its legislative powers to the republican government.

In contrast to the Federal Assembly, the National Assembly elects the whole Government and exercises political control over it. The constitutional function of the National Assembly is limited by the fact that a proposal on the change of the constitution (which is adopted by a two-thirds majority vote of all delegates) is to be referred to a republican referendum.

2. The President of the FR of Yugoslavia and the President of the Republic of Serbia in a System of Separation of Powers

In the FR of Yugoslavia and the Republic of Serbia, the executive power is bicephalous - it is comprised of the President of the Republic and the Government. The essential differences between the Constitution of the FR of Yugoslavia and the Serbian Constitution with respect to the distribution of powers between the President of the Republic and the Government, mode of their election, termination of office and responsibility, arise from a difference in the system of government at the federal level and in Serbia (i.e. a parliamentary vs. parliamentary-presidential system of government).

According to the provisions of the Constitution of the FR of Yugoslavia (Articles 97 and 98), which were in force until the adoption of Amendments V, VI and VII to the Constitution of the FR of Yugoslavia on 6 July, 2000, the President of the FR of Yugoslavia is elected (for a four-year term, after which the same person cannot be re-elected) by the Federal Assembly, which may also relieve him from office after establishing the fact that he has violated the Constitution of the FR of Yugoslavia. Amendments V, VI and VII to the Constitution of the FR of Yugoslavia provide a new solution according to which the President of the FR of Yugoslavia is elected directly, by secret ballot. His term is four years and the same person cannot be elected for this office more than twice. According to this provision, the manner in which the President of the FR of Yugoslavia may be relieved from office is essentially different. Namely, the Federal Assembly may relieve him from office after the Federal Constitutional Court has determined that he had violated the Constitution of the FR of Yugoslavia. The procedure for his relief from office may be initiated by at least one half of the delegates to both Chambers of the Federal Assembly. The Federal Assembly may put this issue to a vote not sooner than 15 days after the date on which the Federal Constitutional Court submitted to the Federal Assembly its decision that the President of the FR of Yugoslavia has violated the federal constitution. The President will be relieved from office if such a proposal is adopted by a two-thirds majority of all delegates to both Chambers of the Federal Assembly. The new constitutional provision has two major systemic defects. The first is a serious disruption of the parliamentary system by a direct election of the President of the FR of Yugoslavia (although his constitutional powers have not been changed). Namely, the President of the FR of Yugoslavia so elected acquires a high political legitimacy in relation to the Federal Assembly, while at the same time his direct responsibility to the Federal Assembly is repealed. The other serious defect is that the new constitutional solution practically deprives the smaller federal unit (Montenegro) of any influence on the election of the president of the federal state.

The Serbian President is elected directly, which is the expression of a mixed, parliamentary-presidential system of government (Article 86 of the Serbian Constitution). His term is five years and the same person cannot be elected for this office more than twice. Therefore, the conditions and procedure relating to his removal - although linked to the violation of the constitution - are very complex. Namely the proposal for his recall, which can be established by at least a two-thirds majority of all deputies, is decided upon by a direct expression of views of the voters. The President will be recalled by a majority vote of all voters. This absolute majority exceeds substantially the majority by which the President is elected and makes the raising of the question of his political responsibility much more difficult. If the President is not removed, the National Assembly has to be dissolved. This is a very strong instrument of protection of the President of the Republic and actually constitutes a threat to and serious penalty for the parliament if the president is not recalled.

The functions of the President of the FRY are mostly representational, thus being in compliance with a parliamentary system in government. An exception to this rule is the function of the president of the Supreme Defence Council, or the function of the commander of the Yugoslav Army, which is performed pursuant to the decisions of the Supreme Defence Council.

In contrast to the President of the FRY, the President of the Republic of Serbia has a wide range of executive functions in accordance with a parliamentary-presidential system of government. They include, above all, the competence in the area of foreign policy. Further, if the National Assembly is not in a position to meet, the President of Serbia proclaims a state of war and immediate danger of war, and passes the enactments falling within the competence of the National Assembly for the duration of such a situation. Apart from the right to limit certain constitutional freedoms and rights of citizens, the Serbian President may change the organization, composition and competence of the Government and ministries, courts and public prosecutor's offices, whereby he is bound to submit his enactments to the National Assembly for approval as soon as it is in a position to meet. At the Government's proposal, the Serbian President may also impose martial law if the security, rights and freedoms of the citizens or the work of government bodies are jeopardized in one part of the Republic. During that period, me may pass enactments and take measures as required by the circumstances. The Law on Measures in the Event of Martial Law provides for broader powers of the President of the Republic than those granted by the Constitution.

With the adoption of the Constitution of the FR of Yugoslavia and appropriate federal laws (on defence), all these "strong" functions of the Serbian President came within the competence of federal agencies, although the republican constitution has not yet been harmonized with the federal one. Thus, the Serbian President actually has a lesser number of functions than the head of state in a mixed system of government.

In contrast to the President of the FR of Yugoslavia, the Serbian President has the right of suspensory legislative veto and may request from the Government to present its views on certain issues falling within its frame of reference.

At the Government's proposal, accompanied by the statement of reasons, the President of Serbia may dissolve the National Assembly. The practice in Serbia has shown that the constitutional powers of the President are excessive and that they pose an obstacle to the functioning of popular representation and the Government.

3. The Federal Government and the Government of the Republic of Serbia in a System of the Separation of Powers

Under the Constitution of the FR of Yugoslavia, the Federal Government both creates and holds the executive power in the federation. It also formulates and carries out domestic and foreign policy, proposes and enforces federal laws, establishes and abolishes the ministries, directs and supervises their work and enactments, orders general mobilization and makes preparations for defence. When the Federal Assembly is not in a position to meet, the Federal Government proclaims a state of war, immediate danger of war or martial law. During that period, it passes the enactments falling within the competence of the Federal Assembly, which must be submitted to the Federal Assembly for approval as soon as it is in a position to meet.

The Government of the Republic of Serbia has considerably smaller powers due to a difference in the organization of government or, in other words, in the distribution of powers between the government and the head of state, as the organ of the executive power. Therefore, apart from its traditional functions (carrying out policy, proposing and enforcing laws, directing and supervising the work of the ministries), the Serbian Government has no authority to adopt the enactments falling within the competence of the National Assembly, and to establish or abolish the ministries autonomously during a state of war. Likewise, the Serbian Government cannot dissolve the National Assembly. This can be done by the President of the Republic at its proposal, accompanied by the statement of reasons.

As for the distribution of responsibilities and regulation of the relationship of legislative and executive powers, of special significance is the general authority of the government (federal and republican) to pass decrees for the enforcement of laws. Experience has shown that there is a widespread usurpation of the legislative power by the Serbian Government, in particular, which is reflected in the passing of decrees. These decrees often exceeded the legal framework and basically regulated certain issues. It was not rare that certain legal provisions (relating to the tax system, for example) were changed directly by decrees. In this way, the constitution and its principle of separation of powers were flagrantly violated and the so-called decree-making power was constituted.

From the viewpoint of the parliamentary system in the federation, the constitutional relationship between the Federal Assembly and Federal Government is essential. Under the 1992 Constitution of the FR of Yugoslavia, within rationalized parliamentarism, the chancellery principle was established. According to this principle, the Federal Prime Minister is the one who personifies the Federal Government, so that with his election or relief from office by the Federal Assembly, the Federal Government is elected or relieved from office as well. The head of the Federal Government sets its policy and changes it (naturally, in consultation with the coalition partners), about which he must duly inform the Federal Assembly. The Federal Ministers are not responsible to the Federal Assembly, but to the Federal Prime Minister, who is responsible to the Federal Assembly for his own work and the work of his Government.

By Amendment VIII to the Constitution of the FRY, which was adopted on 6 July, 2000, the so-called chancellery model of the Federal Government was abolished and the whole Government is now elected by the Federal Assembly to which it is responsible for its work. Thus, the Federal Government may receive a vote of no-confidence by the Federal Assembly. As opposed to the previous constitutional provision, under which the head of the Federal Government could inform the Federal Assembly about the changes made in the Federal Government by himself, Amendment VIII stipulates that he may only propose the removal of certain members of his Government. At the same time, the constitutional powers of the Federal Government were not changed.

In contrast to the 1992 Yugoslav Constitution, the Serbian Constitution stipulates that the Prime Minister and the whole Government are elected and relieved from office by the National Assembly. In other words, the Government as a whole and each individual minister are responsible to the Assembly. At the proposal of at least twenty deputies, the National Assembly may pass a vote of no-confidence to the Government or one of its members. The Government may also raise the question of its confidence in the National Assembly, and the Prime Minister may propose to the National Assembly to relieve certain members of the Government from office, just as the Government and each of its members may offer their resignation to the National Assembly.

The Federal Government may be called to account, in the form of a proposal for passing a vote of no-confidence, by at least twenty deputies to one of the Chambers of the Federal Assembly. The Federal Government will receive a vote of no-confidence if the majority of all deputies to the two Chambers votes for such a proposal.

In a federal parliamentary system, the Federal Government has two powers in relation to the Federal Assembly. The first is the right to dissolve the Federal Assembly if the latter is not in a position to perform its functions for a longer period (without a definite time-limit), after obtaining the opinion of the presidents of both chambers and leaders of the deputies' clubs. This very strong power of the Federal Government is limited in several ways. Namely, the Federal Assembly cannot be dissolved if the procedure for passing a vote of no-confidence to the Federal Government has already been initiated; during the first and last six months of its term; during a state of war, in the event of an immediate danger of war and martial law.

As opposed to the Constitution of the FR of Yugoslavia, the Serbian Constitution stipulates that the National Assembly cannot be dissolved only during a state of war or in the event of an immediate danger of war. In this way, the constitutional status of the parliament in Serbia has substantially been weakened in favour of the executive power.

The Federal Government may also raise the question of its confidence in the Federal Assembly. In real fact, this instrument implies threatening with a parliamentary crisis if the Government receives a vote of no-confidence, but it is in compliance with a parliamentary system of government. The Serbian Government has the same right in relation to the National Assembly.

Apart from passing a vote of no-confidence to the Federal Prime Minister (under the 1992 Constitution) and now to the whole Federal Government (under Amendment VIII), that is, to the government as a whole and its ministers in Serbia, parliamentary control over the work of the government is exercised through the deputy's questions and interpellation. As opposed to the rules of the Chambers of the Federal Assembly, the rules of the National Assembly do not contain interpellation, otherwise a strong instrument of control over the work of the government. Experience has also shown that the regulation and use of the deputy's questions are inadequate and inefficient. As for the compatibility of the deputy's and ministerial functions, the Constitution of the FR of Yugoslavia explicitly prohibits it, while the Serbian Constitution permits it. The Yugoslav Constitution also stipulates that a member of the Federal Government cannot perform any other public function or professional activity, unless provided for by the Serbian Constitution. However, such a ban is contained in the republican Law on Government Administration, although it has not so far been observed in practice.

4. The Judicial Power in a System of the Separation of Powers

Within the doctrine of separation of powers, the FRY Constitution and the Serbian Constitution proclaim the independence of the judiciary and its binding only by the constitution and statute. The protection of constitutionality and legality is vested in constitutional courts. They also guarantee the judicial protection of constitutional rights and freedoms. In addition, the FRY Constitution also guarantees the constitutional protection of rights and freedoms by means of constitutional appeal. The legislative power prescribes the jurisdiction, organization and method of work of courts. The election of judges and termination of their tenure are regulated by the constitution and law. The judicial power, as a politically neutral and professional branch of government, enjoys full independence in the performance of its function in relation to other two branches.

The assemblies (federal and republican) elect judges (and prosecutors), whereby their tenure in Serbia is permanent, while at the federal level it is nine years for judges and four years for prosecutors. The FRY Constitution stipulates that the presidents of the Federal Constitutional Court and the Federal Court elect judges "among themselves", while the Serbian Constitution stipulates that the presidents of all courts should be elected by the National Assembly. The principle of permanency of the judge's function in Serbia and "immovability" of judges is a vital yet insufficient prerequisite for independent judiciary.

A proposal for the election of judges (and the prosecutor) at the federal level is made by the President of the FR of Yugoslavia, after obtaining the opinion of the presidents of the constituent republics. In Serbia, the President of the Republic proposes candidates only for the judges and the president of the Constitutional Court. A proposal for the election of judges and presidents of regular courts (and the prosecutor) is put forward by the Committee for the Judiciary of the Republican Assembly.

The judges (and the prosecutor) at the federal level, as well as the judges of the Constitutional Court of Serbia enjoy total immunity, like deputies and ministers, while the judges of regular courts (and the prosecutor) in Serbia enjoy "rump" immunity. Namely, they cannot be called to account for anything said in the exercise of their judicial function, or be detained without the approval of the National Assembly if the proceedings have been initiated against them due to a criminal offence performed in the exercise of the judge's or prosecutor's function. The Assembly may relieve a judge (and a prosecutor) from office or, in other words, his tenure may be terminated only in cases enumerated by the Constitution. Under the Constitution, the decision of the Assembly relating to the termination of the judge's function or removal must be preceded by the supreme court's taking a position that the conditions for making such a decision have been met. This is in conformity with the principle of separation of powers and independent judiciary. Experience has shown, however, that this elaborate constitutional provision does not guarantee adequate protection against the unconstitutional removal of judges.

The hitherto experience has shown that there are serious deficiencies in the constitutional solution, according to which judges are proposed and elected by the political bodies of government (i.e. the head of state and parliament) due to the application of the criteria of political "fitness" to their election and removal.

Constitutional courts perform control over the constitutionality and legality of all regulations and by-laws adopted by the legislative and executive-administrative powers. This very powerful authority, whose purpose is the preservation of constitutionality and legality, includes the right to abolish an unconstitutional legal provision or law, government decree or regulations of the bodies of government, as well as any other regulation and by-law. In that sense, constitutional courts are the guardians of the constitutional principle of separation of powers or, in other words, a strong barrier to the unconstitutional and unlawful conduct of the legislative and executive powers. The decisions of constitutional courts are universally binding and executive and, in case of need, the government ensures their execution. Unfortunately, there is a great discrepancy between the constitutional role and practice of constitutional courts.

Decisions relating to the legality of final administrative acts are vested in regular courts (a district court and the Supreme Court of Serbia, or the Federal Court) in an administrative lawsuit, which is an important constitutional instrument for control over the legality of specified enactments of administrative bodies.

Courts settle election disputes, i.e. they decide on whether the law was violated during the election of federal, republican, provincial and local representative bodies. At the federal level, this authority is vested in the Federal Constitutional Court and, in Serbia, in regular courts. The Constitutional Court of Serbia is in charge only if an election dispute does not come within the competence of regular courts or other bodies of government.

On the other hand, the legislative and, in particular, executive powers exert a strong influence on the work of courts, beginning with the election of judges, their removal, material status, etc. In addition, the head of state, by granting pardon, and the assemblies, by granting amnesty, exert an additional influence on legally enforceable judicial decisions, whereby they actually modify them or render them invalid.

The influence of the ministry of justice, as a body of government administration, on the organization and work of judges is very disputable for a constitutional viewpoint. This influence is overemphasized, especially with respect to the organization of the judiciary, election and removal of judges, material status of courts and judges. It is also incompatible with the principle of separation of powers that the ministry of justice, as an administrative body, adopts the court rules. In this way, the constitutional guarantees of judicial independence are called seriously in question.

II PROPOSED CHANGES IN THE CONSTITUTIONAL SYSTEM OF SERBIA RELATING TO THE SEPARATION OF POWERS

The hitherto experience with the functioning of state authority in Serbia has shown that the current parliamentary-presidential system should be replaced with a parliamentary system of government. This implies that the President of the Republic should be vested with representational powers, and elected and relieved from office by the National Assembly. In this way, the authority and democratic legitimacy of the National Assembly will be enhanced and the Government will actually assume the entire executive power.
The President of the Republic of Serbia would be elected and relieved from office by the National Assembly, by the majority of all delegates. The President of the Republic would have representational powers, which are typical of a parliamentary system of government. The procedure for his relief from office would be initiated by the Assembly at the proposal of the majority of all delegates, and the same majority could relieve him from office after the Constitutional Court has established that he had violated the Constitution. The President of the Republic of Serbia would not have the right of suspensory legislative veto any more.
The National Assembly of the Republic of Serbia could not, like now, be dissolved by the decision of the President of Serbia at the Government's proposal, considering the future representational powers of the head of state, but by the Government's decision. However, instead of the current, vague constitutional formulations, the Constitution should state precisely the conditions that should be met so that the National Assembly may be dissolved. The Serbian Constitution should also stipulate that the Assembly cannot be dissolved in the following cases: if the procedure for passing a vote of no-confidence to the Government has been initiated; during the first and last six months of its term; during a state of war and in the event of immediate danger of war or martial law. If the National Assembly is not in a position to meet, the Government will - for the duration of a state of war, immediate danger of war or martial law - adopt the enactments falling within the competence of the Assembly. They should be submitted to the Assembly for approval as soon as it is in a position to meet. The Constitution should also stipulate that the term of deputies is to be terminated if the Government is not elected or the budget adopted within a period of three months after the constitution of the National Assembly.
As regards the relationship of the Assembly and the Government with respect to the election of the Government and its responsibility to the Assembly, the current provision in the Serbian Constitution should be retained. This means that the Assembly elects and relieves from office the Government as a whole and that both the Government as a whole and its ministers individually are responsible to the Assembly. The Serbian Constitution should also provide for the Government to formulate the policy of the Republic and not only to implement it. The hitherto practice in Serbia points to a need to set the time-limit in the Constitution within which the National Assembly would be bound to elect the Government (e.g. within 60 days after the constitutive session). If the Assembly fails to elect it within the set time-limit, it will be dissolved and a new election will be scheduled within 60 days.
The procedure of raising the question of the Government's responsibility in the Assembly calls for the appropriate constitutional changes and different legal and procedural solutions. In addition, it would be necessary to incorporate new and more elaborate solutions relating to political control of the Assembly over the work of the Government into the Republican Constitution. Above all else, the deputy's question, a procedural institution that has been disregarded in practice, should be given the constitutional status. The same applies to interpellation, which does not exist in the Serbian constitutional and legal systems. Interpellation should be given the constitutional status and character it has in advanced parliamentary systems. Namely, if the majority of all deputies to the Assembly expresses discontent with the Government's answer, after a hearing devoted to interpellation in the Assembly, it should be held as if the procedure for passing a vote of no-confidence to the Government has automatically been initiated. Likewise, the Constitution should provide for so-called parliamentary inquiries by setting up committees of inquiry. In the process of constitutional reforms, special attention should be devoted to the provision of an efficient parliamentary control over the work of the state security service (secret police).
Considering very pronounced and frequent practice of the Serbian Government (in the previous terms) to overstep its constitutional competence and usurp the legislative function of the Assembly by passing decrees for the enforcement of laws, it is necessary to review the current constitutional provision relating to the Government's decree-making function. A solution can be to abolish the general power of the Government to adopt decrees for the enforcement of laws, and to define the rights and obligations of the Assembly, so that the latter - in adopting a law - anticipates (or does not anticipate) the power of the Government to prescribe the method of implementing the law by a decree. This also refers to the authority of the ministries to elaborate the method of implementation of the laws and government decrees in their regulations, which is one of the frequent methods of impermissible supplementation and revision of legal solutions.
The Serbian Constitution should state explicitly that a member of the Government cannot perform any other public function (except that of a deputy) or professional activity. This refers, above all, to the function of an enterprise manager due to a very frequent symbiosis of power and money and, thus, the unconstitutional, monopolistic position of "ministers' firms".
The constitutional status of courts should be adjusted to a larger extent to the principles of separation of powers and independent judiciary. This calls, above all, for changes in the mode of election of judges, because the current system enables the domination of the executive power and top party officials or, in other words, the application of the criteria of political fitness and not of expertise and worthiness. Therefore, judges should be elected and relieved from office by the High Judicial Council, which should be established by the Constitution after obtaining the opinion of panels of judges. The Council should be comprised mostly of judges of the republican supreme court, while the rest should include the representatives of the Assembly and reputed legal experts outside courts. An alternative solution: the High Judicial would, on the basis of the opinion of panels of judges, make proposals for the election and removal of judges and the National Assembly would elect or remove judges on this basis.

Independent judiciary should also be strengthened by providing a guarantee for a stable and satisfactory material status of courts and judges, all the more so, because judges cannot engage in any other professional activity due to the nature of their profession. Therefore, it should be provided for under the constitution that the judicial budget becomes an autonomous part of the government budget and that the High Judicial Council decides about its use. By the constitution and statute, it would be necessary to exclude or significantly decrease the current influence of the ministry of justice, as the organ of judicial administration, on the organization, personnel policy and material status of courts and judges. This ministry should provide only professional, organizational and financial assistance to the judiciary, keep records of the work of courts, exercise administrative control and the like.
In view of the extremely important powers of the Constitutional Court in respect to the control of constitutionality and legality and the preservation of the principle of separation of powers, it will be necessary to define its obligations by the Constitution and law. This refers especially to the obligations concerning time-limits and promptness in the assessment of the constitutionality of laws, as well as the constitutionality and legality of government decrees. The Constitution should lay down strict criteria for the election of judges of the Constitutional Court (the proven expertise, experience and high reputation) and should also provide for the inclusion of law professors and reputed legal experts from research institutes in it. It is also necessary to incorporate the constitutional appeal - like that in the German constitutional system, for example - into the system of constitutional and judicial protection of individual freedoms and rights.
It is also necessary to incorporate into the constitutional system the institution of ombudsman, as an independent parliamentary institution for the protection of constitutional rights and freedoms of citizens from unlawful acts and improper work of administrative bodies, in particular, including the police, penal institutions, military authorities, as well as public services. The ombudsman would warn publicly the administrative bodies and public services of the observed unlawful acts and irregularities, send his recommendations and remarks to them, and inform both the parliament and the public accordingly. He would have the power to initiate the appropriate proceedings before the court.
Naturally, these and other changes in the Serbian Constitution will not bring about the strict observance of the principle of separation of powers, constitutionality and legality, as well as the rule of law by themselves. This refers especially to the provision of efficient political and other control over the executive power, which has an innate propensity to dominate the other two branches of government and society as a whole. We are facing a relatively long period of development of modern and democratic parliamentarism, resting upon a considerably higher level of political consciousness and culture of citizens and being freed from the domination of extremism and destructive actions. It is also important to create conditions for the truly independent and efficient judiciary, freed from the inertia of a unified system of authority and the domination of a party state, as well as to considerably improve the material status of courts and judges, thus encouraging young and talented experts to become and remain judges.

Naturally, all this anticipates the reconstruction and development of various institutions of democratic public opinion and civil society, independent media and full respect for human rights and freedoms. Understandably, this can be achieved only in an economically more developed and politically and socially more stable society, integrated into European and other international associations, whose overall economic and legal systems would be compatible with the generally accepted European and international standards and practice.

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