The Fundamental Proposals for a New Commonwealth

The Fundamental Proposals for a New Commonwealth by Boris Vukobrat and the Developments During the Past 20 Years

by Elisabeth Kopp

Mr. President, dear Mr. Vukobrat,

Ladies and Gentlemen,

Let me first of all thank you for the invitation for this conference.

I was asked to confront also Switzerland with Mr. Vukobrat’s principles.

When the Iron Curtain felled an American writer named Fukuyama wrote a book, with the title: ‘The End of History and the Last Man’. He was convinced that, with the victory of democracy over the totalitarian communist countries of Eastern Europe, nothing would follow. He was clearly deluded. As long as mankind survives they will make historic changes, and the historians of the future will speak of continued change. And they will probably say that mankind doesn’t seem to have learned much by the history.

Mr. Vukobrat formulated his principles for a new commonwealth in 1992 on an assessment of the then overall political and demographic situation in the Former Republic of Yugoslavia, and based on a vision for the Commonwealth of Yugoslavia.

His principles were formulated for the future, not for the then present when Yugoslavia was still suffering from war ravaging Bosnia and from further conflicts. Albeit the recent history of the Western Balkan States his proposals are still relevant and valuable to the harmonisation of the most important principles of a constitutional framework for all countries of the former republic of Yugoslavia, or as a prerequisite to reaching the accession path to the EU.

Just recently the chairman of the “EU Commission for Expansion”, Mr. Ftile, made clear that Serbia can only become a member of the EU when its laws comply with the direction of “EU Legislation”. The reason for this warning was, as you will remember, the Serbian decision that the Serbian Parliament should seek more influence on its Central Bank.

As you know Switzerland is a very old country. It is more than 700 years old. The democracy could develop step by step and with many backwards during all these centuries. It is furthermore a very small country with about 8 million inhabitants, of which 22% are foreigners, and with four official languages, German, French, Italian and Romantsch. One of the main reasons that this old democracy has survived is the respect of minorities. Another reason is that our constitution provides that no person can become too powerful.

We don’t have and don’t want a mighty president.

First Principle: Democracy

In his famous speech in 1947 at the University of Zurich, Winston Churchill said: “democracy is the worst political system in the world, except for all others” So let us think together about what a democratic system really is, or should be.

A current and primary issue is the financing of political parties. Is there robust legislation, is there transparency?

A second issue addresses information and comprehension of proposed legislation. Is the information clear, exhaustive, leaving enough time for in-depth opinion shaping and discussion; in other words do the parliamentarians or – in the case of a referendum – the people, know exactly what they are accepting or rejecting? If I’m not mistaken the time allowed for the Serbian Parliament to vote on the new constitution was pretty short whereas it took more than ten years for the total revision of the Swiss Constitution in the form of an “updating” only.

And finally a third crucial criterion for “democratic”: Who has the right to vote, are there any limits which might be in conflict with the basic principle of equality before the law, and whom are they going to elect? Is it sufficient to elect a party or might it be necessary to be able to elect individuals for a full term of legislation? The answer to this question is crucial for the role and power of the parliament.

Therefore: “democratic” should be defined by precise self-explanatory constitutional rules requiring more precise laws (acts).

Principle Two: “State of law”

Under “State of law” quite a few issues are discussed: the separation of powers, the principle of legality, and the right to legal remedy.

The separation of powers, as obvious as it may seem when considered a democratic state, is not just an organizational question. The independence of the judiciary from the other traditional state powers (legislative and executive) needs to be safeguarded by many features. It starts with the election of the judges: who is electing, and by whom? Are judges really independent from parliament if they are elected – In this regard Switzerland has some serious problems in relation to the election and re-election procedures of the judges of the Federal Supreme Court.

Principle Three and Four: Protection of Ethnic Groups and Prohibition of Discrimination.

According to the actual interpretation of such issues these principles aim at the same: equality before the law, and prohibition of discrimination.

Prohibition of discrimination has become one of the most crucial issues in the last twenty years, primarily because of migration in various forms.

Prohibiting discrimination also touches the discrimination of languages.

The four official languages in Switzerland have to be respected everywhere: in schools, the public administrations and street signs.

The non discrimination of course includes handicapped people. They should have access to all public places for e.g. to the railway, which will cost millions of Swiss francs.

Principle Five: Decentralization of Power, Principle of “Subordination” (i.e. Subsidiarity) Switzerland is the epitome of a federal system based on the “bottom-up-approach”:

The confederation has only those powers which are vested in it by the constitution.

1 Art. 8 para.l and para.2 of the Swiss Constitution, art.

Uniquely to Switzerland is the fact that on all political levels (communal, cantonal, national) the citizens or, on a national level the parliament, have the right to set the level of taxes.

The fifth principle we are discussing now also includes the principle of subsidiarity. Subsidiarity, i.e. leaving the decision power to the lowest possible level of the constitutional state hierarchy, has become not only difficult to comply with, but also somewhat ambiguous.

This reminds me of a funny story where this principle is taken to extremes. In Switzerland we have 2 cantons where the boundary passes through a city and even along the middle of the street. Each canton, without consultation with each other, introduced different regulations regarding the behavior of dogs on the street.

However they did not succeed in teaching the dogs how to read these regulations so that they could know how to change their behavior when they crossed over the street into the other canton.

The EU shows in the recent past how difficult “subsidiarity” is to follow in practice; in some aspects it is not much more than an empty phrase.

Principles Six and Nine: Economic Liberty and Market Economy

Closely linked to freedom is the guarantee of private property. The guarantee of private property belongs to one of the most important prerequisites for economic liberty and a Market Economy.

As far back as the ancient Greeks Aristotle knew that no freedom is limitless. The negative aspect of too much freedom of economy was an issue already recognized by the ancient Greeks and proves to be one of major reasons for the current huge crisis not only in this country today.

The transition from social property to market economy was difficult for all countries emerging from under a socialist/communist government. But it was also difficult for the people, to become responsible citizens with rights but also duties.

In this world of globalization recent history has shown that uncontrolled greed by the few can have devastating impacts on the many. The most obvious of these is the banking crisis where a few greedy investment bankers interested only in their personal wealth saw the opportunity to use their banks as casinos. When they were winning everyone was happy ignorant of the fact that it could not last. The effects of this have caused widespread hardship, putting excessive stress on all of the welfare initiatives inherent in a democratic system.

The Social State Principle

As part of principle 6, economic liberty, Mr. Vukobrat mentions the need for “a minimum of material security”. This is a constitutional principle of a social state. When someone is hungry, freezing or sick, freedom is not their first priority. The bigger the gap between the excessively rich and the poor becomes, the more it will be necessary to introduce social safeguards for the losers. This also helps to avoid social tensions.

The Seventh Principle: Guaranteeing the State Borders

The text refers implicitly to the Commonwealth integrating the former constituent states of Yugoslavia. But precisely this principle, not only for a future commonwealth,

but also respect of international law has already been violated in spite of the Dayton agreement. Yet, the principle as such is not disputable.

Principle Eight: Integration of the Commonwealth into Europe

This is more a political goal than a principle. But it is, and will remain an important goal.

However all ex-Yugoslav countries have achieved a number of important steps towards these goals. They all have ratified the ECHR, which is a prerequisite to join the Council of Europe. And all states are members of the OSCE.

I was asked to comment on the nine principles set out by Mr. Vukobrat.

Remarkable as they are, the political development over the last twenty years- has shown that there is a need for more than these principles. We need – and this is also true for Switzerland – to carefully consider the effects of constitutional principles, and the consequences if they are not respected in their true sense.

Mr President, ladies and gentlemen I would like to close this opening address by leaving you with some thoughts to debate over the coming days. We have quickly looked at the principles laid down by Boris Vukobrat and have identified some strengths, shortcomings, and examples of what others have tried on the journey to real democracy. Countries now starting on the road to full democracy have a significant advantage over more established countries as they can learn from the best parts of democracy, and avoid the experiments that clearly do not work, or fall short of expectation.

We start with the tenet that a democracy consists of a framework of a Government freely elected ‘by the people, for the people’ with oversight from an independent judiciary built on merit, not election. This Government then needs to build a social and legal framework based on the rule of law, respect for human rights, free speech, respect for International law, and equality for all. In return the electorate need to respect the law, and take responsibility for their role in society. Only then can democracy come close to the ideals.

I hope that you enjoy your discussions during this conference, and for all participants to share the responsibility of amicable and equitable debate. Many of us have differing opinions, but I hope we all share the same basic values of a just society based on freedom and liberty for all. This is the basis for the way to peace.

Thank you for your attention.

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