The New Constitution of Serbia and Gender Equality Marijana Pajvancic, Ph.D, Law School, University of Novi Sad, Serbia and Montenegro |
1. The Constitutional Process in Serbia: Contents and the Progress of Constitutional Debate The constitutional issue in the Republic of Serbia has been open for a long time now. The debate on the constitutional issue was initiated among experts as early as the moment of adopting the Constitution, and debate has continued. The constitutional debate has been conducted in stages, focusing on various constitutional issues. Constitutional guarantees of gender equality did not come into the focus of attention of the expert and political community until late 2004. Some other constitutional contents had been the object of interest until then. The search for new constitutional solutions began after a phase of critical consideration of the 1990 Constitution, which brought about a lot of criticism concerning this constitution. The first incentive to the discussion on new constitutional solutions for Yugoslavia was a project by a group of authors, Proposal for a New Association of the Republics of Former Yugoslavia. [1] The initial debate was conducted on the most important open constitutional questions and constitutional principles, which are the foundation of the basic constitutional consensus. This is further evidenced by the studies on individual constitutional issues [2] and constitutional projects published between 1995 and 2000: A Draft Constitution of Serbia; [3] The Constitution of the Regional State of United Serbian States, [4] Constitutional Principles for a Democratic Serbia. [5] After the year 2000, this theoretical debate was substituted by a debate on specific constitutional issues, [6] and more specific definition of the contents of constitutional principles and the most important constitutional institutions. [7] The experts’ attention was focused on two groups of issues: the concept of the new constitution and vertical power sharing. Interest in constitutional issues grew in 2003, with the commencement of work on the new Constitution of Serbia. The discussion was focused on four constitutional projects that were the objects of particular attention: Constitutional Solutions for Serbia and Yugoslavia, [8] Draft Constitution of the Kingdom of Serbia, [9] A Model of the Constitution of Serbia, [10] and The Basic Principles for a New Constitution of Serbia. [11] Four groups of questions were differentiated during the debate: [12] the basic principles and definition of the state, human rights, organisation of government, and territorial organisation. The third phase began in 2003. It was marked by the commencement of work on the preparation of the new Constitution of Serbia at the National Assembly of the Republic of Serbia. During the work on changing the Constitution, the Democratic Party of Serbia specified their views, previously stated in The Basic Principles for the New Constitution of Serbia, in a document Draft Constitution of Serbia (2003). A different party, Democratic Party submitted another Draft Constitution (2003), while some political parties supported the fundamental ideas stated in the projects elaborated by expert groups. [13] . The first attempt at adopting the new Constitution of Serbia resulted in a failure. The work of the Constitutional Committee [14] was discontinued by the dissolution of the National Assembly of Serbia in late 2004. When work on the preparation of the Constitution was recommenced in Serbia, the attention was focused on eight constitutional projects. [15] Three of the eight projects were prepared by political parties, [16] two were the work of expert groups gathered by NGOs, [17] one was the original work of a professor of constitutional law, [18] and the most recent proposals were submitted by the Government of Serbia and the expert group formed by the President of the Republic. [19] Gender aspects of these eight alternatives are discussed in section two of this paper. A brief overview of the constitutional debate so far points to the conclusion that no serious attention has been paid to considering the ways in which general constitutional guarantees of gender equality are to be provided in the future Constitution of Serbia. We find this issue important because it refers to the constitutional status and human rights of the citizens of Serbia, so it will be the object of our particular attention. A democratic constitution is legitimised by consensus, not only of political actors of the constitutional process, but also of the widest circle of citizens on the most important issues comprising the basis of the community in which they live. The constitutional process and the adoption process of a constitution should make it possible to reach a consensus on the fundamental issues of a political community’s structure and of the position of citizens in it. Serbia needs a new constitution that would constitutionalise the framework of democratic transition and, within this framework, would set the rules providing and specifying the constitutional principle of gender equality. Adopting a constitution means defining the new identities and the institutional framework of future new communal life. This applies not only to all individual citizens, but for the political association as well. A constitution is not only a fundamental but also a founding act - legislation which legally formalises decisions enabling the existence of citizens and of the state in a manner of constitutional democracy. The status of individuals and the nature of the political association will depend on which principles and criteria the constitution makers choose in approaching these and the related questions. For the new Constitution of Serbia to meet all these requirements, the constitutional process must equally include men and women. As early as the time of the French Revolution and the preparation of the Declaration of the Liberties and Rights of Man, Olympia de Gouge (1775-1793) warned in the Declaration of the Rights of Women and Citizens that female citizens had the right to participate actively in creating and adopting a constitution: “The Constitution is null and void if the majority of citizens comprising the Nation did not participate in adopting it.” Led by this principle, we state our willingness to participate in the constitutional debate and the process of preparing the new Constitution of the Republic of Serbia. 2.Constitutional Solutions of Gender Equality in the Projects of the New Constitution of Serbia In this section, we point to the fundamental solutions and the manner of setting up gender equality in the eight constitutional projects that were the focus of special attention from the expert and political communities. These can be used as sources for new constitutional solutions. A Proposal for the New Constitution of Serbia by Belgrade Centre for Human Rights starts from the international standards of human rights. Guarantees relevant to gender equality include: equality before the law; the right to equal legal protection without discrimination; [20] prohibition of direct and indirect gender discrimination; the right to marriage with free consent of future spouses; equality of spouses entering, during, and ending marriage; protection of the family, mother and child; the right to the lawful state pregnancy and post-natal benefits; health care for children, pregnant women, and senior citizens, if not provided on other grounds; and affirmative action as required to achieve equality, special care, and advancement for people in inequitable positions so they can enjoy human rights fully under equal conditions. Although the authors of the project are trying to use gender sensitive vocabulary, they do not do it in full.[21] The policy of equal opportunities is not established as a right and an obligation of the state. Reasons for prohibiting the work of a political party do not include gender-based discrimination – only racial, ethnic, and religious hatred and discrimination. Parental rights are not provided as equal rights and obligations of father and mother. Special rights after childbirth (maternity leave) are guaranteed only to mothers, not to fathers. The right of decision regarding procreation is not specifically guaranteed. A Draft Constitution of the Kingdom of Serbia by P. Nikolić, Ph.D. guarantees equality of all before the law including citizens in terms of gender; availability of all jobs and positions under equal conditions; the right to fair wages and equal remuneration for work of equal value without difference; special job safety and special working conditions for women, youths and invalids; mandatory social security for all employees and members of their families; the right to health care from public revenue for children, women, and senior citizens not receiving those benefits on other grounds; special care for families, mothers, children, and minors without parents; marriage with free consent of the future spouses; equality of the spouses in marriage; free decision of the spouses regarding procreation; parents’ rights and obligations to support, raise, and educate their children. The project uses gender sensitive vocabulary [22] inconsistently. Measures of affirmative action are not provided separately. There are no specific provisions regarding indirect or direct discrimination. The policy of equal opportunities is not established as a constitutional right and obligation of the state. Reasons for prohibiting the work of a political party do not include gender based discrimination – only racial, ethnic, and religious hatred and discrimination. The right to decide regarding procreation is guaranteed only to married spouses, not those in common law marriage. The right to maternity/paternity leave is not guaranteed specifically. A Project of the Constitution of Republic of Serbia by Forum Iuris guarantees human rights originating from international standards. In accordance with the principle of social solidarity, it stipulates that it is the obligation of the state to actively undertake measures of economic and social aid to citizens and social groups who are in underprivileged position for various reasons. Such measures must be aimed at removing economic an social barriers to achieving equality of rights; equality before the law; equality in the protection of freedoms and rights; equality of parents in parental rights and responsibilities; the right to marriage; equality of men and women entering, during, and ending marriage; marriage based on free consent of future spouses; citizens’ rights to enter public service under equal conditions and to perform political functions; the right to equal opportunities and equal treatment in choosing employment; employment without gender-based discrimination; special rights for women, youth, and the handicapped; the right to equal remuneration for work of equal value without any difference; the right to personal dignity at work; right of employed women to the protection of maternity; the right to equal opportunities and equal treatment of employment versus family responsibilities; obligations of the state and employees to take legal measures in terms of labour rights; availability of all forms of education under equal terms; the right to shelter from gender-based persecution; and obligatory state-provided health care for children, pregnant women, and the elderly, if they are not receiving those benefits on other grounds. The authors of this proposal use gender-sensitive terminology.[23] The proposal does not explicitly stipulate prohibition against direct and indirect discrimination and does not explicitly provide the possibility of undertaking affirmative action measures. The policy of equal opportunities is not established as a general obligation of the state, except in the case of the principle of social solidarity. Reasons for prohibiting the work of a political party do not include gender based discrimination – only racial, ethnic, and religious hatred and discrimination. The right of decision regarding procreation is not guaranteed. The right to maternity/paternity leave is not specifically guaranteed. A Draft Constitution of Serbia submitted by the Democratic Party also starts from the international human rights standards. It prohibits gender based discrimination; restrictions on human rights under the pretence that they are not constitutionally guaranteed; and forced labour, explicitly defining whether sexual or economic exploitation of disadvantaged persons is considered forced labour. It guarantees the rights of equal legal protection without discrimination; shelter from gender-based persecution; men and women of the age of consent to marry and to have a family; the pregnancy and post-natal support and care for mothers during the lawful period; special protection of the family, mother, and child; and parents and guardians to educate their children according to their religious and moral beliefs. It stipulates equality before the law; the possibility of introducing affirmative action measures; equality of spouses entering, during, and ending marriage; and special health care for children, pregnant women and senior citizens, if not received on other grounds. The authors of the proposal have striven to secure gender sensitive vocabulary [24] but this rule is not followed consistently throughout the text. Some important rights are not provided, for example, the rights to decide regarding procreation, to maternity or paternity leave, to equality of the mother and the father in parental responsibilities, to special workplace safety for pregnant women and mothers, and to equal remuneration for work of equal value. Special care and support are guaranteed only to mothers during pregnancy and post-natal periods, while the right to this support and protection after childbirth is not guaranteed to the father. Reasons for prohibiting the work of an association include only racial, ethnic, and religious hatred and not gender based discrimination. It does not stipulate equal opportunities policy as an obligation of the state. A Draft Constitution of the Republic of Serbia prepared by the Democratic Party of Serbia guarantees human rights starting from international standards in this field. The proposal specifically guarantees the rights to equal legal protection without discrimination; marriage; parents and guardians to develop their children according to their religious and moral beliefs; support and protection of mothers in pregnancy and the post-natal period; and health care from public revenue for children, pregnant women and the elderly not receiving those benefits on other grounds. It prohibits direct and indirect gender based discrimination and forced labour, explicitly defining sexual or economic exploitation of disadvantaged people as forced labour. It guarantees equality before the Constitution and the law and equality of spouses entering, during, and ending marriage. It guarantees equality of parents in their rights and responsibilities to support, raise, and educate their children and the possibility of revoking or limiting the rights of one or both parents in the child’s interest, by court decision and in accordance with the law. The proposal stipulates affirmative action measures to achieve full and effective equality of persons or groups in really unequal positions to other citizens; special workplace safety and special working conditions for women, youths and invalids; marriage based on free consent of men and women; stimulation and help by the Republic of Serbia to parents in deciding on procreation; and special protection of the family, mother, and child guaranteed by the Republic of Serbia. This proposal does not follow the standard demanding that the vocabulary of legislation be gender sensitive. [25] The proposed Constitution does not include the obligation of the state to implement an equal opportunities policy. Special protection and support is guaranteed during pregnancy and the post-natal period only to the mother, while the right to this support and protection is not guaranteed to the father. The right to maternity/paternity leave is not specifically guaranteed. There is no guarantee of social security and protection for pregnant women and mothers. Reasons for prohibiting the work of an association include only racial, ethnic and religious hatred – not gender-based discrimination. There is no explicit prohibition against expressing gender-based intolerance. The right of asylum is not specifically guaranteed. The Constitution of Serbia proposed by the Liberals of Serbia also starts from international human rights standards and specifically stipulates the rights to equal legal protection without discrimination; to the lawful state support and protection for mothers during pregnancy and post-natal periods; and for parents and guardians to educate their children according to their religious and moral beliefs. It prohibits gender based discrimination and forced labour, considering sexual or economic exploitation of disadvantaged persons to be forced labour. It stipulates equality before the law; special protection of the family, mother, and child provided by the society and the state; and special healthcare for children, pregnant women, and senior citizens not receiving those benefits on other grounds. It guarantees the possibility of taking measures of affirmative action. This proposal does not respect the standard demanding that the vocabulary of legislation should not be discriminatory. [26] It does not explicitly stipulate the forms of discrimination (indirect and direct). The proposed Constitution does not include the obligation of the state to implement an equal opportunities policy. Special care and support is guaranteed during pregnancy and post-natal periods only to mothers, while these rights are not guaranteed to fathers. The right to maternity/paternity leave is not specifically guaranteed, nor are social security and protection for pregnant women and mothers. Reasons for prohibiting the work of an association include only racial, ethnic, and religious hatred – not gender-based discrimination. There is no explicit prohibition against expressing gender-based intolerance. The freedom of decision regarding procreation is not guaranteed. Two draft constitutions will be the subjects of our special attention. They are the Draft Constitution of the Republic of Serbia prepared by the Government of Serbia, and a proposal by an expert group gathered by the President of the Republic. The reason for this is that these proposals came from persons who are entitled, under the current Constitution of Serbia, to submit proposals for adopting a new constitution. The Draft Constitution of the Republic of Serbia prepared by the Constitutional Committee of the Government of Serbia contains both general provisions on gender equality and several special guarantees regarding gender equality. General provisions that should be mentioned include direct application of international law and constitution in the national law (Article 17), and explicit constitutional prohibition against direct and indirect discrimination (Article 19). These provisions enable direct application of all universal and regional conventions and standards, both general and specific to gender equality. In addition, the draft constitution includes the prohibition against discrimination, among others, on the ground of gender; and, in accordance with international standards, specifically emphasises direct and indirect discrimination as the fundamental modalities of discrimination (Article 19). Positive discrimination (Article 20), which includes regulations, measures, and activities, is a new concept of the constitutional system, contributing to the elimination of discrimination. Among particular provisions specifically concerned with gender equality, we point would point out: prohibition against trafficking of human beings (Article 25); prohibition against sexual exploitation, which, by explicit constitutional provision, is considered as forced labour and subject to prohibition as such (Article 25); equality of husband and wife (Article 60); guaranteed freedom of decision regarding procreation; parental rights (Article 63); constitutional guarantees of special care for the family, mother, and child (Article 64); and special health care for pregnant women (Article 66). The proposal, however, does not use gender sensitive vocabulary, nor does it oblige the state to implement equal opportunities policies, which are international standards in this area. There is no explicit guarantee of the free consent of spouses before entering marriage or of protection of single parents. A general provision enabling positive discrimination is not specifically stipulated by the draft constitution, nor is that content specified in relevant chapters. A Proposal for a New Constitution of Serbia by an expert group [27] formed by the President of the Republic also contains general guarantees and specific rights regarding gender equality. This proposal is characterised by the use of gender sensitive vocabulary in accordance with international conventions (CEDAW). Among the general provisions, the fundamental principles of the proposed constitution guarantee equality of men and women (Article 15) and oblige the state to implement an equal opportunities policy (Article 15). The general provisions in the chapter on human rights guarantee the direct application of international law as well as direct application of constitutional provisions on human rights (Articles 23 and 24). Those general provisions also prohibit discrimination (Article 25) and list direct and indirect discrimination as forms of discrimination, while measures of positive discrimination are provided as instruments to eliminate discrimination (Article 25). In addition, among the general provisions on human rights, this proposal includes provisions which indirectly protect constitutional rights from possible restriction or elimination that may occur by the interpretation of constitutional guarantees which would “imply the right of the state, group or individuals to take action aimed at abolishing a constitutionally guaranteed right or imposing restrictions greater than those permitted by the Constitution” (Article 26), and explicitly prohibits placing restrictions on human rights under the pretence of their not being guaranteed by the Constitution (Article 28). The proposal also contains several special guarantees specifically concerned with gender equality including prohibition against sexual exploitation, which is considered as forced labour (Article 34). Matters of gender equality in family relations include guarantees of free consent of the spouses when entering into marriage (Article 49), equality of spouses in marital relations (Article 49), special protection of mothers and single parents (Article 63), and equality of parents in parental responsibilities (Article 63). In the political area, guarantees concerning gender equality are explicitly guaranteed measures of positive discrimination in the elections, both parliamentary and local (Article 57) and the guarantee to at least one seat as the Vice President of the National Assembly for the underrepresented gender (Article 97). This overview of constitutional solutions specifically concerned with the general constitutional principle of gender equality points to ten general conclusions: 1. Although there is a noticeable attempt to use gender sensitive vocabulary in the highest legal act of the state, it is done with only partial success. Only two of the projects pay attention to this aspect using both genders of the noun “citizen” in the preamble, while only one uses this vocabulary consistently. 2. Most of the proposals guarantee equality of men and women, either by positive norm or by prohibiting gender based discrimination. There are specific guarantees of equality before the law as well equality in the right to the protection of freedoms and rights. Some of the projects lack the definitions of forms of discrimination (indirect or direct). It is noticeable that causing gender-based intolerance or hatred is not prohibited, nor is gender-based discrimination listed as a reason for prohibiting the work of a political party or citizens’ organisation. In both cases the prohibition only applies to racial, religious, and ethnic intolerance. 3. All projects, except one, lack the provision on the obligation of the state to implement an equal opportunities policy. 4. Measures of affirmative action are provided as a possibility in most of the projects, and the discontinuation of these measures is connected to achieving the goal of these affirmative action measures. 5. The freedom of decision regarding procreation is guaranteed by most of the projects, but it is noticeable that its contents are determined differently. In some projects, it is guaranteed by a general provision. In others, the decision regarding procreation is the parents’ right. 6. Most of the rights guaranteed by project proposals concern the special care for women in their reproductive roles (mothers and pregnant women in pre- and post-natal periods). Still, none of the projects specifies, for instance, the right to paid maternity (or paternity) leave for the employed. Also lacking is the guaranteed right to social security for parents (men or women), especially single parents having children up to a certain age. Despite the obvious attempt in some projects, they are not fully successful in emphasising the rights and responsibilities of both parents in relation to their children. For instance, the rights to health care and special post-natal care are guaranteed only to mothers, not to fathers. Only one of the projects explicitly stipulates the funding source for this form of health care (public revenue), which is especially significant for the possibility of effective implementation of the right. There is no guarantee whatsoever of rights of single parents. Some rights are guaranteed by the general norm that requires further specification in order to be implemented effectively (e.g., the provision under which families, mothers and children enjoy the special care of the society and the state). 7. It is obvious that the authors are trying to provide special forms of protection for employed women. Although in this respect there could be some more decisive guarantees, these are definitely the most completely regulated guarantees, now formulated in the form of blanket provisions (e.g., rights could be formulated as the employer’s responsibility). It is significant that only a few proposals contain an explicit provision regarding the right to equal remuneration for work of equal value. Only one of the projects explicitly guarantees the right to equal opportunities and equal treatment in the choice of profession and employment without gender-based discrimination. 8. The right to education is guaranteed in all projects as a general right enjoyed by every person. Yet, there are certain differences regarding education levels (e.g., whether it includes only primary education or all educational levels). Wording should be unambiguous, and the right should be guaranteed for all levels of education, as equal availability to all levels of education. 9. Equality of future spouses when entering marriage, freedom of decision of future spouses about entering marriage, and their equality during the marriage and at its dissolution are guaranteed by all projects. 10. In some projects, sexual or economic exploitation of disadvantaged persons is considered to be forced labour prohibited by the Constitution. These are definitely solutions to be supported, and they should find their place in the future Constitution of Serbia. All of the above speak in favour of the need to approach the constitutional matters regulating the equality of men and women in a responsible and careful manner. This is because the Constitution remains the fundamental framework defining the contents of the constitutional principle of equality and the source of accompanying regulations, notably laws regulating this matter more specifically. Therefore, it is important to have a Constitution with a firm and clear guarantee of equality of women and men and with a reliable guide for legislative activity. 3. Gender Equality and The Charter on Human and Minority Rights and Civil Freedoms The legal reference framework for the constitutional arrangement of gender equality in Serbia is represented by two types of legal sources to be borne in mind when writing the Constitution. One source is international legal sources and the other is the Charter on Human and Minority Rights and Civil Freedoms as an act of national legislation. This is why we shall make a brief overview of these documents. Specific proposals of constitutional norms for the new Constitution of the Republic of Serbia start from the international human rights standards established in international conventions. Especially important are those ratified by the competent authorities of the Union of Serbia and Montenegro and specified through the practice of international institutions for human rights protection and the generally accepted rules of international law. Specific proposals especially refer to constitutional guarantees of gender equality and prohibition of indirect and direct discrimination and the obligations of the state and the government to implement an equal opportunities policy. Another important provision is for closer definition of the contents of the gender-equality principle in individual spheres of social life, especially in the spheres of economics (e.g., work and employment) and politics (e.g., the principle of equal participation of women in electoral and appointed positions). Also vital are establishment of the possibility of taking affirmative action measures to eliminate actual inequality and protection of the right to gender equality (e.g., the right to protection, tools, and procedures). When stipulating the principle of gender equality, it is necessary to bear in mind the general and regional international standards in this field. They are contained in ratified international conventions. [28] They are operationalised specifically through the practices of international bodies in charge of the implications of these standards and of international institutions in charge of the protection of human rights. These standards need to be implemented in the new Constitution of Serbia. In addition to the above, it is necessary to point out the guarantees regarding the principle of gender equality stipulated by the Charter on Human and Minority Rights and Civil Freedoms. Provisions in the Charter relevant to constitutional solutions of the gender-equality principle include several guarantees. These are prohibition against direct and indirect discrimination (Article 3, Paragraph 3); affirmative action measures (Article 3, Paragraph 4); prohibition against placing restrictions on human rights under the pretence of their not being guaranteed by the Charter (Article 8); guarantees of acquired rights (Article 47, Paragraph 1); the right to marriage based on the free will of the spouses (Article 9, Paragraph 1); equality of spouses entering, during, and dissolving marriage (Article 9, Paragraph 1); special protection of mothers and children (Article 40); special health care for pregnant women (Article 45); and the right to asylum based on fear of gender-based persecution (Article 38, Paragraph 1). However, the Charter on Human and Minority Rights and Civil Freedoms does not include some significant guarantees of gender equality that represent international standards. Thus, the Charter does not meet the standard demanding that legislation, especially the Constitution as the most important legal act, should be written in gender-sensitive vocabulary. We shall quote a few examples to illustrate. The right to vote is enjoyed by citizens, but the noun is only in masculine-gender form (Article 33, Paragraph 2); The right to participate in decision-making in all public affairs is guaranteed to citizens, but the noun is only in masculine-gender form (Article 33, Paragraph 1). The right to citizenship is guaranteed to citizens, but the noun is only in masculine-gender form (Article 35). The Charter also contains good examples of gender sensitive vocabulary that should be used as a model. For instance, every person has the right to establish newspapers and other means of public communication (Article 30, Paragraph 1); every person enjoys the freedom of association (Article 32, paragraph 1). The Charter on Human and Minority Rights and Civil Freedoms does not guarantee some rights or freedoms of special importance for effective implementation of the constitutional principle of gender equality. Unlike other rights and freedoms guaranteed by the Constitution, without guaranteeing these rights, the principle of gender equality remains at the level of a programmatic constitutional norm without effective and direct implementation. In the area of constitutional protection of family and marriage, there are no guarantees to equality of spouses in marriage. There are no provisions regarding the principle of equal responsibilities of parents in bringing up children and for rights and responsibilities to children. Freedom of decision regarding procreation is not guaranteed. In the area of political rights, there is no explicit guarantee of equal opportunities for both genders to participate in political life and public government, nor of equal representation of men and women in all elected and appointed positions. Reasons for prohibiting the work of a political party do not include gender-based discrimination – only racial, ethnic, and religious intolerance and hatred, etc. In the area of work and employment there are no guarantees of the right to equal remuneration for work of equal value, to availability of each job under equal conditions, to equal opportunities for professional advancement and training, etc. In the areas of social security and health care, there are no provisions for some important rights connected with the production of reproductive rights that would point to the special care of the state in the area of reproductive rights such as the right to maternity and paternity leave; special rights to social and health care for single parents (fathers and mothers) with children up to a certain age; special rights to financial security during the unemployment period for single parents (fathers and mothers) with children up to a certain age; and the right to health care for household workers, etc. 4. A Point of View to the A Constitutional Framework to Provide Gender Equality in the New Constitution of Serbia The remaining section of the paper will contain the author’s specific proposal regarding gender equality and specific stipulations of this fundamental constitutional principle in the future Constitution of Serbia. The Preamble to the Constitution should be written with the noun “citizen” in both grammatical genders. [29] In the introductory part of the Constitution, among the fundamental principles underlying the Constitution, it is necessary to include provisions on equality between women and men and on the obligations of the state to develop an equal opportunities policy and to undertake special affirmative action measures towards this goal. The wording of the constitutional provision could read: “The Republic of Serbia provides for equality of citizens of both genders. It promotes the equality of women and men by developing the policy of equal opportunities, including special measures of affirmative action (positive discrimination).” [30] The part of the Constitution regulating freedoms and rights should include several important guarantees, so as to provide the following:
Translated from Serbian: Women’s Center for Democracy and Human Rights, Subotica, Serbia and Montenegro
[1] The authors were national and international experts lead by B. Vukobrat; see Predlozi za novu zajednicu republika bivše Jugoslavije (Proposals for the New Community of the Republics of the Former Yugoslavia), Belgrade, 1993. [2] See Ustavna i pravna pitanja jugoslovenske države (Constitutional and Legal Issues of the Yugoslav State), Belgrade 1999; Ustavnost i vladavina prava(Constitutionalism and the Rule of Law), Centre for the Promotion of Law Studies, 2000; Kriza i reforma pravosuđa (Crisis and the Reform of the Jurisdiction), Centre for the Promotion of Law Studies, Belgrade, 2001. [3] Author: M. Pajvančić; see the collection of papers, Srbija između prošlosti i budućnosti (Serbia Between Past and Future), Forum for Interethnic Relations, Belgrade, 1995. [4] Author: M. M. Jovičić, Member of the Academy; see Ustavni principi za demokratsku Srbiju (Constitutional Principles for the Democratic Serbia), Vajat, Belgrade, 1996. [5] The authors are national experts headed by Professor L. Basta, Ph.D. See Ustavni principi za demokratsku Srbiju (The Constitutional Principles for the Democratic Serbia), Belgrade Centre for Human Rights, Belgrade, 1997. [6] Sources: Srbija država regiona (Serbia State of Regions), Council for Democratic Changes, Belgrade, 2000; Predlog za novi Ustav Srbije (Proposal for the New Constitution of Serbia), Belgrade Centre for Human Rights, Belgrade, 2000; The New Serbia Forum – A Programme for the Re-Constitution of Yugoslavia, London, 2000; Ustavno pravni okvir decentralizacije Srbije i autonomija Vojvodine Constitutional Legal Framework for the Decentralisation of Serbia and the Authonomy of Vojvodina), Centre for Regionalism, Novi Sad, 2001; Ogledi o regionalizaciji – komparativna studija (Assays about Reginalisation – a Comparative Study), Open University Subotica, 2001; Ustavno preuređenje Savezne republike Jugoslavije (The Constitutional Rearrangement of the Federal Republic of Yugoslavia), Centre for Liberal Democratic Studies, Belgrade 2002; Novi koncept lokalne samouprave u Srbiji (New Concept of the Local Selfgovernment in Serbia) , Agency for Local Democracy, Subotica; Regionalizacija Srbije (Regionalisation of Serbia), Centre for Liberal Democratic Studies, Belgrade, 2003. [7] M. Pajvančić et al., Principi ustavne deklaracije (Principles of the Constitutional Declaration), Forum for Ethnic Relations, Belgrade, 2000. [8] Conducted by a group of authors lead by L. Basta Flajner, Ph.D. See the publication of the Belgrade Centre for Human Rights, Belgrade, 2001. [9] P. Nikolić, Ph.D., was the project author. [10] Conducted by a group of authors lead by M. Pajvančić, Ph.D. See the publication of Forum iuris, Novi Sad, 2002. [11] Prepared by the Democratic Party of Serbia. [12] See Prizma magazine, Centre for Liberal Democratic Studies, January 2003; papers in Pravni sistem i država u demokratskoj tradiciji (Legal System and the State in the Democratic Tradition), Konrad Adenauer, Belgrade, 2003; papers in Ustavni Sud Srbije – u Susret novom ustavu (Constitutional Court of Serbia – In Approaching the New Constitution), Constitutional Court, Belgrade, 2004. The new quality of constitutional debate identified issues on which views were similar and issues on which project authors’ views differed notably. G17+ summarized the issues in Pravni sistem i država u demokratskoj tradiciji (The Legal System and the State in the Democratic Transition), Konrad Adenauer, Belgrade, 2003. [13] Citizen’s Association of Serbia supported A Proposal for the New Constitution of Serbia. Reformists of Vojvodina supported A Model of the Constitution of Serbia. [14] Results of their work are in papers in Proposals for a New Constitution of Serbia, Friedrich Ebert Stiftung, Belgrade, 2004. [15] See Proposals for a New Constitution of Serbia, Friedrich Ebert Stiftung, Belgrade, 2004, with Belgrade Centre for Human Rights, A Proposal for the New Constitution of Serbia; P. Nikolić, Ph.D., A Draft Constitution of the Kingdom of Serbia; Forum Iuris, A Project of the Constitution of Republic of Serbia; Democratic Party, A Draft Constitution of Serbia; Democratic Party of Serbia, A Draft Constitution of the Republic of Serbia; Liberals of Serbia,The Constitution of Serbia; the Constitutional Committee, A Draft Constitution of the Republic of Serbia. G17+ a summary of open constitutional issues. [16] A Draft Constitution of the Republic of Serbia, Democratic Party of Serbia (2003); A Draft Constitution of Serbia, Democratic Party(2003); A Constitution of Serbia, Liberals of Serbia (2004). [17] A Proposal for the New Constitution of Serbia, Belgrade Centre for Human Rights, Belgrade, 2001; A Project of the Constitution of the Republic of Serbia, Forum Iuris, Novi Sad, 2001. [18] P. Nikolić, Ph.D., The Constitution of the Kingdom of Serbia: A Draft, published by the author, Belgrade, 2001. [19] Proposals for a New Constitution of Serbia II, Fiedrich Ebert Stiftung, Belgrade, 2005. [20] Prohibition against discrimination based on sexual orientation, set forth in this proposal, was not supported unanimously by the project group; therefore, there was a separate opinion by two group members regarding this issue. [21] See, for example, guarantees of voting rights (“citizen”) citizenship (“subject”) – nouns in their masculine form. [22] Nouns such as “citizens,” “subjects,” and “foreigners” are in the masculine form. [23] The Preamble to the Constitution begins with the term “citizens of Serbia” in both genders, with a note that all nouns referring to the subjects of freedoms and rights and bearers of public functions, used in the text in masculine grammatical gender, imply the appropriate feminine form. [24] The Preamble to the Constitution begins with the words “citizens of Serbia” in both grammatical genders, but later on this is not done consistently, nor is there a general remark that nouns are to be understood as referring to both genders. [25] E.g., articles 1, 2, 12, 13, 16, 50, 51, and 55. [26] E.g., articles 1, 2, 5, 7, 9, 43, 54, and 57. [27] The expert group included Prof. M. Grubač, Ph.D.; Prof. V. Dimitrijević, Ph.D.; Prof. M. Pajvančić, Ph.D.; Prof. D. Popović, Ph.D.; O. Nikolić, Ph.D.; V. Đerić, M.Sc.; S. Bulajić, M.Sc.; S. Čiplić, M.Sc.; and R. Žarevac, M.Sc. [28] The Universal Declaration of Human Rights (1948); the Convention on the Political Rights of Women (1952); the International Covenant on Civil and Political Rights (1966); the International Covenant on Economic, Social and Cultural Rights (1966); the Declaration on the Elimination of All Forms of Discrimination against Women (1967); the Convention on the Elimination of All Forms of Discrimination against Women (1979); The Convention on the Nationality ofMarried Women; Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages; the Convention on the Equality of Women and Men (1988); The Conclusion of the Conferences in Strasbourg (1986), Vienna (1989), Rome (1993); the conclusion of the Fourth Conference on Women (Vienna 1994); Beijing documents 1995 (Parliamentary Declaration, Platform for Action) the Council of Europe Declaration on Equality Between Women and Men as a Fundamental Criterion of Democracy (1997); the Universal Declaration on Democracy (1997); the final document of the Interparliamentary Conference in New Delhi (1997); the final document of the Interparliamentary Conference on Security and Cooperation in the Mediterranean (2000); the European Convention for the Protection of Human Rights and Fundamental Freedoms; the Charter on Fundamental Rights in the European Union (2000); the document adopted in Bucharest (2001); the International Labour Organisation Convention 3 Concerning the Employment of Women in Pre-natal and Post-natal Period; ILO Convention 45 Concerning the Employment of Women on Underground Work in Mines of All Kinds; ILO Convention 89 Convention Concerning Night Work of Women Employed in Industry; ILO Convention 100 Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value; Maternity Protection Convention no. 103; ILO Convention 111 (1958) Concerning Discrimination in Respect of Employment and Occupation, etc. [29] See the documents of the Interparliamentary Union – especially the agenda for correcting the current discrepancy in the participation of women and men in political life (Point B IV / Paris 1994) stipulating that language used in legislation must not be gender blind and recommending that states revise their constitutions and eliminate vocabulary that tends to advocate gender stereotypes. [30] The basic principles especially guarantee the protection of three categories of citizens: subjects of the Republic of Serbia living abroad, members of the Serbian nation (Article 13), and ethnic minorities (Article 14). We believe that the introductory section of the Constitution should also specifically stipulate equality of women and men, and especially the policy of equal treatment. This is supported by the comparative constitutional practice and international documents (Articles 3 and 4 of the Convention on the Elimination of all Forms of Discrimination against Women; the Final Document of the 4thUNO Conference on Women, Beijing 1995; Paragraph 3 of the Charter on European Security; Sections A and B of the Declaration on Equality Between Women and Men as a Fundamental Criterion of Democracy, Istanbul 13-14 Nov. 1997; Article 17 of the Directive of the Council of Europe No. 78 of 27 Nov. 2000, etc.). [31] E.g., Articles 4 and 7/1 of the Convention on the Elimination of All Forms of Discrimination against Women; Point 14 of the Final Document of the Interparliamentary Conference, New Delhi, 18 Feb. 1997; Section A of the Declaration on Equality between Women and Men as a Fundamental Criterion of Democracy, Istanbul, 1997; Section C-III, Point 104 of the Universal Declaration on Democracy, Paris, 1997; Strategies G-1 and G-2 of the Final Document of the Interparliamentary Conference, Marseilles, etc. [32] E.g., Article 11, Paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women; Strategies G-1 and G-2 of the Declaration on Equality Between Women and Men as a Fundamental Criterion of Democracy, Istanbul, 1997; Convention 111 of the International Labour Convention – prohibition of discrimination against women in employment and occupation; Article 23 of the European Charter on Fundamental Rights no. 364/01 of 7th November 2000; the European Charter on Social Rights, etc.
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