The author analyses the role of the constitutional judiciary and the traditional theory of the tripartite division of power. His radical conclusion is: the division of power in Montesquieu's sense, as a tool of control and balance in modern state, does not exist. There is no social violence to which such balance, control or correction could be applied to. In such circumstances, the role, selection and work of constitutional judges is of utmost significance for the control, correction and balancing of political process. (SOI : PM: S. 87)
This dissertation treats the competence of Constitutional courts in settling the disputes of jurisdictional conflicts, both in theoretical and historical as well as practical, sense. It is common knowledge that the Constitutional court is the most efficient mechanism for protecting the constitutionally determined separation of power. The role of the Constitutional Court is especially significant with regard to the fact that the separation of power does not exclude the possibility of interweaving jurisdiction of different levels of state power. By settling disputes of jurisdictional conflicts, the Constitutional Court gains competence for the determination of clear boundaries of state power organs in terms of their constitutional authorisation. Given the fact that the jurisdictional conflict is mainly motivated by political agenda, the Constitutional Court must settle an originally political dispute by implementing the constitutional norms. The jurisdictional conflicts are a common competence of Constitutional courts. They are a direct representation of the government, or the constitutionally determined separation of power. A distinction between horizontal and vertical disputes can consequently be made. Various factors cause these disputes, including the following: state power, government, political parties system, level of democratic development, the level of precision of constitutional norms determining the boundaries of state power, etc. The constitutional disputes of jurisdictional conflicts should, however, be thought of in a broader sense as well. The Constitution commonly views these disputes as a separate jurisdiction of Constitutional courts. If the disputes of jurisdictional conflicts are regarded as a factual violation of constitutionally proclaimed separation of power, then the other constitutional disputes can be seen as an infringement of the power separation principle as well. In that way the Constitutional court indirectly settles a competence dispute while simultaneously carrying out normative control, its basic duty. Assuming that the separation of power is based on the idea of preventing the abuse of state power by guaranteeing the fundamental rights and freedoms, one can say that, while deciding on the protection of rights and freedoms proclaimed by the Constitution, the Constitutional court indirectly protects the power separation principle. The matter of jurisdictional conflicts can decided upon by the court when the court is asked to give an interpretation of the constitutional provisions. If the fact that this jurisdiction is a necessary consequence of federal division of the state is exempted, one can say that in the countries without federal division the settling of competence disputes, also represents a separate jurisdiction of Constitutional courts. The guiding principle for all the countries was the fact that the abuse of power or the realisation of its separation (or balance) can only be reached through the operating system of an independent and unbiased institution, as the Constitutional court itself is. An analysis of various countries' Constitutions and the practice of Constitutional courts in settling competence disputes has shown that Constitutional courts have made a significant contribution to the realisation of power separation, especially in the transitional processes of non-democratic regimes to democratic ones. Naturally the real effects of the constitutional jurisprudence depend on the political climate-the relationship between the political institutions and the one these have with the Constitutional court, as well as their willingness to abide by its decisions-and this is a fact one should not neglect.
The Croatian Constitutional Court by its decision of June 24, 1992 partly rejected a reqest to start proceedings, and partly terminated already started proceedings, to determine the constitutionality of some thirty emergency decrees passed by the President of the Croatian Republic during the undeclared war with Serbia and the Yugoslav People's Army in the second half of 1991. The Court backed its decision inter alia by the following arguments: the President has the power to pass emergency decrees without declaring first the state of emergency; presidential emergency decrees can be retroactive since Croatian Constitution does not forbid specifically their retroactivity. The Court's reasoning which endorses a permanent coup d'etat, is very probably a corollary of the idea, which is taken for granted by some Croatian constitutional lawyers, that the Croatian Constitution has been modelled on the Constitution of the French 5th Republic so that the sweeping powers of the French President belong also to his Croatian counterpart. The paper challenges the idea and discusses the relevance of comparative constitutional theory for Croatian constitutional practice. The first three sections demonstrate that, despite political similarities between the early years of the French 5th Republic and the Croatian Republic the two semi-presidential systems differ in several important constitutional and legal respects so that the powers - especially emergency powers - of the French President cannot be used as a persuasive authority to interpret powers of the Croatian President. Section four indicates that if anything in French law is authoritative in interpreting Croatian constitutional provisions on the state of emergency it is the effort of the French Conseil d'etat to control, even though in a very limited way, the legality of presidential emergency decrees. The last section points out that assumptions with which Croatian Constitutional Court interprets presidential powers are more in accord with the Weimar Constitution than with the Constitution of the 5th French Republic. The paper ends with the warning that the unrestrained exercise of presidential powers in Croatia may lead, as it did in Mussolinni's Italy and in the Weimar Republic, to a dictatorship. (SOI : PM: S. 165)
American and international public looks up to American presidents as the chief creators of American foreign policy. A review of the contemporary history of US foreign policy is mostly a review of foreign policy platforms and initiatives of American presidents. Although fundamental prerequisites exist - constitutional powers, executive office of the President as support in the creation and implementation of certain decisions, the expectations of the Congress and the public that President should lead the nation in the foreign policy arena - not all American presidents have taken an equal interest in foreign policy decision-making and the creation of American foreign policy; this has depended on their personal interests and experiences. Despite significant constitutional restrictions of the president's autonomous action in foreign policy and occasionally successful attempts of the legislature to assume control over foreign policy, as well as frequent challenges to presidential powers and numerous actions by the public, we can conclude that American presidents are nevertheless dominant figures in the field of American foreign policy. (SOI : PM: S. 192)
The development of both conventional and written legal rules that were governing the roots of the administration, has run in parallel with the development of the country. The development of legal state was going parallel with the development of constitutional state. The legal state can not be imagined without pandering Administration under the law, but precisely because of it stems judicial control of management, which is necessary for the full realization of the principle of legality and the protection of rights and legal interests of citizens. Administrative action presents a means to protect the rights and interests of citizens, but on the other hand it is also an effective tool for ensuring the legality of administrative operations. Pandering administration under the law is linked to the French Revolution from 1789, in this respect, France is a country that is the first to introduce an administrative dispute. The development of an administrative dispute in France can be followed through the occurrence and development of the State Council, which was formed during Napoleon time in 1799. The legal institutionalization of the administration is not done in the same way everywhere, in that sense we distinguish two big legal systems, Anglo-Saxon and European-continental. In Anglo- Saxon law legal institutionalization of the administration included the procuring administration under the legal norms of general law, management control exercised by courts of general jurisdiction. In the European-continental law legal institutionalization of the administration departs from pandering Administration under the legal standards that belong to a specific branch of law administrative law. In the European- continental system there is a difference between private and public law, and an important part of the legal regime are special administrative courts. The development of an administrative dispute actually juridical control of administration in Serbia can be traced back to the second half of the 19th century. Although Serbia has created very early the State Council following the example of France, in a formal sense the administrative dispute in Serbia was fully introduced by the Constitution from 1869. At our place administrative activities are controlled by the courts, which are an integral part of the judiciary and acting under special rules, rules of administrative law. Depending on the positive law of certain countries, the subject of administrative dispute is defined broadly or narrowly. According to French positive law the subject of administrative dispute may be not only single authoritative legal acts of administration, but also the general acts of administration - implementing regulations issued by the administration, as well as administrative objections. According to French positive law the subject of administrative dispute is defined very broadly, unlike the German and Austrian positive law, where an administrative dispute can not be conducted against all acts of general administration. Regarding that in the comparative law we meet a number of different solutions, we believe that in our country we should choose the one that would be the best way to provide protection for the rights of citizens. We lead the administrative dispute in the first place about the legality of final administrative act against other individual legal acts because of the silence of administration, and it may be decided on the request for the return of items and damages. The results of scientific studies will confirm the importance of the need that the subject of the administrative procedure should be complied with the case of an administrative dispute. All acts adopted in the administrative procedure should have directly open the way so the control of legality can be accomplished in administrative proceedings in front of the competent administrative court. What is certainly a major challenge is a control of the legality of administrative contracts. Extended subject of administrative dispute will strengthen the position of the parties in the administrative procedure, in order to guarantee them the quality of court protection in front of the Administrative Court.
Inter-municipal cooperation (IMC), as a form of decentralized implementation of public services and as a part of the local government system, is seen as a means to ensure balanced regional development, better quality of public services, as well as a way to adjust the needs of government organization to the needs of a society, with respect to its structural characteristics and needs. In this paper, the basic forms of inter-municipal cooperation, subjects of cooperation, ways in which the cooperation operates, areas in which the cooperation is achieved, nature of the jurisdiction, financing and management methods, affecting factors, and the specific advantages and disadvantages of this form of decentralized implementation of public services are specified, through the analysis of relevant international documents from this field, experiences and practices from different European countries, as well as normative frameworks and practices of inter-municipal cooperation in Serbia. Bearing in mind that the practice of inter-municipal cooperation has not sufficiently come to life in Serbia, and that there is a number of questions related to it and to the other aspects of decentralization, this research is intended to boost the intensive progress of inter-municipal cooperation in Serbia, as a means to improve the decentralization of public services, and also to overcome the problems local governments are facing. The author finds that, unlike alternative solutions, inter-municipal cooperation preserves local autonomy, strengthening the capacity at the local level and ensuring the implementation of territorial reforms that are conducted "from below", according to the needs of the citizens. Inter-municipal cooperation, regardless of its form, is a type of decentralized implementation of public services. Although it is suspected that the certain form of concentration is achieved through integrated forms of cooperation, these tasks are still performed within a level that is not central; the state does not take any additional role, which would reduce the degree of independence of the entities that are not central, i.e. reduce the decentralized character of these services, or which would strengthen the centralizing tendencies of the state or strengthen state control. In Europe, you can see many examples of very effective cooperation, which has proved to be a solution not just for many structural problems of local government, but also for the vertical government organization in general. IMC provided the solutions that alternatively required radical changes in the territorial organization. Also, IMC proved to be a mechanism that provided regional policy, development goals, public-private partnerships and territorial harmonization. The existing legislative framework of inter-municipal cooperation in Serbia mainly emphasizes voluntary cooperation of individual local governments, without a hint of a widespread or better controlled integration. Apart from the fact that the obligatory cooperation is only an exception, even some of the fundamental questions of its establishment and implementation are not regulated. The need for cooperation consists mainly in providing the regional services and equitable development, in overcoming the limitations, as well as in the more adequate use of local capacities. However, the regulatory framework does not provide a reliable basis for the establishment of high quality, durable and effective partnerships. Given the existence of asymmetric decentralization, one-level local governments, uneven capacities, as well as the development of decentralized units in Serbia, some of the solutions of inter-municipal cooperation can be considered a means of ensuring regional requirements in countries that are characterized by similar solutions, i.e. problems, without any change in the constitutional concept of decentralization. The main areas where the promotion of decentralized systems can be established are regional and spatial development planning, public utility services, tourism, civil and environment protection services, local governments and so on.
Oвa диcepтaциje ce бaви законодавнoм функцијoм паpламентa и њeгoвим oднocoм ca дpyгим кoнкpeтним инcтитyциjaмa, кoje пpeyзимajy oд парламента пoвjepeнe мy надлежности, yзpoкyjyjyћи њeгoвy мapгинaлизaциjy. Oвaj пpoцec ниje нoв, aли пocтaje cвe комплeкcниjи. Нa почeткy cy тo билe влaдa и политичке партије, aли ce вpeмeнoм бpoj cyбjeкaтa кojи yгpoжaвajy законодавнy надлежност паpламентa пoвeћaвao. У oвoм кoнкpeтнoм питaњy, парламент ce cyoчaвa ca oзбиљним изaзoвимa, диjeлeћи надлежност joш и ca шeфoм дpжaвe, ycтaвним cyдoм, нeзaвиcним peгyлaтopим тиjeлимa. Нaжaлocт, тy ниje кpaj. Пpoцec eвpoпcкиx интeгpaциja, кpoз eвpoпcкy лeгиcлaтивy, кpeиpao je jeднy нoвy oблacт законодавнe дjeлaтнocти изyзeтe oд надлежности нaциoнaлниx парламенaта. Cнaжнe и вeoмa диcциплинoвaнe политичке партије дoминиpajy, нe caмo политичким пpoцecимa, вeћ и кoмплeтним парламентарним пpoцeдypaмa и њиxoв нapacтajyћи yтицaj yгpoжaвa пoдjeлy влacти кojy ycпocтaвљa ycтaв и пpoyзpoкyje прoблeме y фyнкциoниcaњy парламентa yoпштe. C oбзиpoм нa њиxoв знaчaj, oнe cy y oвoм paдy aнaлизиpaнe кao нeпocpeдни aктep, aли и индиpeктнo, кao чинилaц кojи кoнтpoлишe oдpeђeнe инcтитyциje кoje yгpoжaвajy законодавнy надлежност парламента. Знaчaj диcepтaциje oглeдa ce y тoмe штo oвoj пpoблeмaтици дo caдa ниje пocвeћeнa пyнa пaжњa, кoja yкљyчyje пpoцec eвpoпcкиx интeгpaциja и нeзaвиcниx peгyлaтopниx тиjeлa. Зaкљyчaк кojи cмo дoниjeли нaкoн иcтpaживaњa je дa oчиглeднo пocтojи пoтpeбa за парламентарнoм peфopмoм коja ћe yчинити законодавни пocтyпaк eфикacниjим, a законодавнo тиjeлo cнaжниjим. Гeнepaлнo, cмaтpaмo дa je нeoпxoднo cнaжeњe тpaдициoнaлнe пoдjeлe влacти. Диcepтaциja тaкoђe пpeдлaжe cпeцифичнa кoнкpeтнa pjeшeњa y кoнтeкcтy peфopмe законодавнoг пocтyпкa. ; Ova diceptacije ce bavi zakonodavnom funkcijom paplamenta i njegovim odnocom ca dpygim konkpetnim inctitycijama, koje ppeyzimajy od parlamenta povjepene my nadležnosti, yzpokyjyjyći njegovy mapginalizacijy. Ovaj ppocec nije nov, ali poctaje cve komplekcniji. Na početky cy to bile vlada i političke partije, ali ce vpemenom bpoj cybjekata koji ygpožavajy zakonodavny nadležnost paplamenta povećavao. U ovom konkpetnom pitanjy, parlament ce cyočava ca ozbiljnim izazovima, dijeleći nadležnost još i ca šefom dpžave, yctavnim cydom, nezavicnim pegylatopim tijelima. Nažaloct, ty nije kpaj. Ppocec evpopckix integpacija, kpoz evpopcky legiclativy, kpeipao je jedny novy oblact zakonodavne djelatnocti izyzete od nadležnosti nacionalnix parlamenata. Cnažne i veoma dicciplinovane političke partije dominipajy, ne camo političkim ppocecima, već i kompletnim parlamentarnim ppocedypama i njixov napactajyći yticaj ygpožava podjely vlacti kojy ycpoctavlja yctav i ppoyzpokyje probleme y fynkcionicanjy parlamenta yopšte. C obzipom na njixov značaj, one cy y ovom pady analizipane kao nepocpedni aktep, ali i indipektno, kao činilac koji kontpoliše odpeđene inctitycije koje ygpožavajy zakonodavny nadležnost parlamenta. Značaj diceptacije ogleda ce y tome što ovoj ppoblematici do cada nije pocvećena pyna pažnja, koja ykljyčyje ppocec evpopckix integpacija i nezavicnix pegylatopnix tijela. Zakljyčak koji cmo donijeli nakon ictpaživanja je da očigledno poctoji potpeba za parlamentarnom pefopmom koja će yčiniti zakonodavni poctypak efikacnijim, a zakonodavno tijelo cnažnijim. Genepalno, cmatpamo da je neopxodno cnaženje tpadicionalne podjele vlacti. Diceptacija takođe ppedlaže cpecifična konkpetna pješenja y kontekcty pefopme zakonodavnog poctypka. ; This dissertation is dealing with legislative parliament function and its relation with other particular institutions that take away stipulated powers from parliament causing his marginalization. This process is not new but it"s become more complex to deal with. In the beginning there was government and political parties, but during the time, number of actors that threaten the legislative competence of parliament increased. On this particular issue, modern parliament facing difficult challenges, sharing his competence with head of the state, constitutional court, independent regulatory agencies. Unfortunatelly, that is not the end. EU integration process, through the European legislation, creates new area of legislative activity excluded from the national parliaments. Strong and highly disciplined political parties are dominating not only political process but whole parliamentary procedures, and its increasing influence causes further damage to separation of powers that constitution establishes and harms parliament particulary. Considering their impact in this process, they are studied in this work directly, and indirectly – as an acter that control other particular institutions which threaten legislative competence of parliament. The importance of the dissertation is reflected in the fact that this issue does not have full attention including EU integration process, indepedent regulatory bodies. The conslusion that we made after the research is that obviously there is a need for parliamentary reform which will make law-making process more efficient, and legislative body stronger. Basically, we find it necessary strengthening of the traditional separation of powers. Dissertation also proposes specific solutions in the context of the law-making process reform.
