DR. MARKOVIC GIVES TESTIMONY REGARDING THE CONSTITUTION
www.slobodan-milosevic.org - January 13, 2005

Written by: Andy Wilcoxson

Dr. Ratko Markovic testified as a defense witness at the trial of Slobodan Milosevic on Thursday. Milosevic presented the witness as “undoubtedly the best expert in constitutional law in the former Yugoslavia.”

Dr. Markovic has an impressive resume. He served as a judge on the Constitutional Court of the SFRY. He is a law professor. He has written over 250 scholarly papers, and 8 textbooks regarding constitutional matters. He also took part in the drafting of the constitution of Serbia, Montenegro, the Federal Republic of Yugoslavia, and a fourth state that he could not mention because of his obligations under the official secrets act. In total Dr. Markovic has a career in constitutional law that spans over 40 years.

Anybody who wants a detailed study in constitutional law, the composition of Yugoslavia’s constitutional court, and how it applied to the secession of republics from Yugoslavia would do well to read the transcript of Dr. Markovic’s testimony when it is published.

Dr. Markovic’s testimony focused on events that took place when he was a judge on the constitutional court of the SFRY. The main events he dealt with in his testimony were the secession of Slovenia and Croatia, which he and his collogues on the constitutional court had deemed to be illegal.

In order to clear-up misconceptions that the constitutional court was Serb-dominated, Dr. Markovic explained its composition. The court had 14 members in total, two from each of the six Yugoslav republics and one from each of the two provinces. The court had to reach all decisions by an absolute majority, in other words the court had to have eight members in agreement to pass a decision. Therefore, it was mathematically impossible for Serbia to dominate the court or outvote the other members. Serbia, even if it pooled together with Montenegro, could not muster the eight votes necessary to pass a decision, and therefore could not dominate the court.

According to the witness, almost all of the judges discharged their duties properly and scrupulously observed the letter of the law. The only exception that he mentioned was Ivan Kristan from Slovenia. Markovic said that Kristan, “obviously based his decisions on the interests of his ethnicity.” Incidentally, Kristan testified as a constitutional expert for the prosecution.

Dr. Markovic laid out the stages that the republics used in order to achieve secession. First came a declaration that the republic was a sovereign state, thereby (illegally) making itself a sovereign state in the SFRY federation. Second came an (illegal) referendum or plebiscite on secession from Yugoslavia. Third came a declaration of secession, and finally the denial of Yugoslav authority in the republic.

According to Dr. Markovic it was the constituent peoples of Yugoslavia which had the right to secede, and not the territories of the republics. To bear this point out he mentioned the fact that the constituent peoples were given the right to step-down from Yugoslavia at the 2^nd session of AVNOJ, before the territories of the republics were even established. Furthermore the republics were not intended to be states of the ethnicity’s. The Croatian constitution, for example, defined Croatia a state of the Croatian people and the Serbian people.

In the late 80s and early 90s the Constitutional Court of the SFRY annulled a number of enactments passed by the Slovenian and Croatian assemblies. Dr. Markovic, who was a judge on the court at the time, enumerated the various enactments and explained the legal reasoning that the court used to determine that the Croatian and Slovenian secessionist moves were illegal and unconstitutional.

Bosnia was not mentioned, because the court was unable to function after Croatia and Slovenia recalled their judges.

In its decisions the court laid out the legal path that the Croats and the Slovenes could have used to step down from Yugoslavia. Unfortunately, the suggestions of the court went unheeded.

According to Dr. Markovic, the legal route to secession for the Croats and the Slovenes would have been for the Federal Assembly of the SFRY to amend the constitution to reflect changes to the borders of the SFRY.

Under the constitution, there was no legal way for the republics to secede unilaterally. Article 5 of the SFRY Constitution stipulated that the borders of the SFRY could not be changed without the consent of all the republics and all the provinces. This consent was never given to Croatia and Slovenia, nor did they ask for it.

Furthermore, the SFRY constitution bestowed sovereignty on the federal state, not on the republics. It stipulated that the territory of the republics constituted the territory of the SFRY.

The case of Croatia’s secession was particularly egregious. The Croatian declaration of sovereignty and independence violated not only the SFRY constitution, but also the Croatian constitution. The Croatian regime did not take account of the fact that Croatia’s territory was defined as the SFRY’s territory in Croatia’s constitution, nor did they consider the fact that Croatia was legally defined as a state of the Croatian people and the Serbian people. They simply ignored the wishes of the Serbian people to remain in Yugoslavia. 

When explaining the reasoning the Constitutional Court used to annul Croatia and Slovenia’s enactments of secession, Dr. Markovic cited international jurisprudence as well as the letter of the SFRY constitution. He cited the 1998 decision of the Canadian Supreme Court, which bans Quebec from unilateral secession from Canada. He also cited a decision of the U.S. Supreme Court, which bans all U.S. states from secession.

In short, the secession of the republics from the SFRY was illegal and unconstitutional according to the rulings of the SFRY constitutional court. The rulings of the court were based firmly on the law, and jibe perfectly with international jurisprudence.

The judges and the prosecution questioned the relevance of this evidence. Milosevic had to explain the obvious relevance to them. The evidence is relevant because the illegal secession of the republics is what caused the wars to breakout in the first place, Milosevic pointed out that this is even confirmed by the indictment.

Dr. Markovic will continue his testimony next week.

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