Case study 1

The St. Vitus Day Constitution, the supreme law of the newly established Yugoslav state, attracted much attention of its contemporaries.1 This is best illustrated by a number of constitutional drafts political, ethnic and religious opposition and outstanding individuals had put forward – in parallel with the governmental draft – all of which revealing the complexity of the then state. Historians and law theoreticians were deliberating the Kingdom of Yugoslavia’s specificities throughout its actual lifetime; and it could be said that the gist of most disputable issues they raised outlived the Kingdom itself. Holding diametrically opposite views, law theoreticians were arguing about major issues such as legal impact of the Corfu Declaration (1917); the Kingdom of SCS’ continuity with the Kingdom of Serbia; was it all about a new or an old state; the legal impact of the Corfu Declaration (1917), etc. Some (Slobodan Jovanović) argued that it was not legally a state, others (Aleksandar Fira2) that is was. However it was only in 1959 that the first comprehensive study related to the St. Vitus Day Constitution was written (dissecting the situation after Dec. 1, 1918; provisionality, the election law, the rules and regulations of the Provisional People’s Representation, parliamentary elections and the balance of forces in the parliament, governmental draft constitution and other drafts, the manner in which the Constitution was voted in, its characteristics and impact on the Kingdom’s political life, etc.) to be published in 2011.3

South Slavs’ Unification Proclaimed: December 1, 1918

The process of rounding off the Yugoslav state actually equaled “the simple enlargement of Serbia.” By the decision of the People’s Assembly (November 25, 1918) in Novi Sad Vojvodina was incorporated in to Serbia. On November 26, 1918 Montenegro’s Big People’s Assembly also decided to ally the country with Serbia. Montenegrin King Nikola Petrović was unthroned. And finally, a delegation of Croatia’s People’s Council came to Belgrade (November 27, 1918) to establish the State of Slovenes, Croats and Serbs. As previously agreed on, Regent Alexander received the delegation and listened to its “Address.” In response, he proclaimed unification of South Slavs into a single state.

The “Address” emphasized that the People’s Assembly had provisionally established a state of Slovenes, Croats and Serbs “willing to unite with Serbia and Montenegro into a single people’s state that would encompass all the South Slavs’ territories.”4 The system of this state, it said, would be left to the Constituent Assembly to decide on, and the latter would be elected “by general, equal, direct and proportional vote.”5 A provisional parliament would be subsequently formed to prepare a Constituent Assembly. The provisional arrangement would be limited in time (to six months) and in its subject matter (convening of the Constituent Assembly and declaration of the Constitution).

In his “Response” to the “Address” the Regent said, “I hereby proclaim the unification of Serbia and the countries of the independent state of Serbs, Croats and Slovenes into the united Kingdom of Serbs, Croats and Slovenes.”6 Whereas the form of the government (monarchy or republic) in the back seat in the Address, it is in the front in the Response – and in the favor of the monarchy. “All this,” say law theoreticians, “is so unusual that it questions the existence of an earlier agreement.” Actually, Serbia’s rulers have been after, from the very beginning, ensuring hegemony through a monarchy and, then the King’s status. However, unlike the speed needed to round off the state’s territory, consolidation of a monarchy – as a form of government – called to time. This is why the provisional arrangement lasted two years instead of the planned period of six months. “The provisional arrangement tended toward permanence of the institutions favoring a monarchy, unitarian and centralistic form of governance and the position of the executive power.”7 Besides, the army was arranged as “a natural extension of the old Serbian army.” “One of the central government’s first legal acts meant to harmonize regulations in the entire territory was exactly the one that legalized Serbia’s Law on the Army in the whole country.”8

Soon after the act of December 1 the first government of the newly established state was formed (Dec. 20, 1918). It was chaired by Serbian politician Stojan Protić, the leader of the People’s Radical Party, the oldest one in Serbia (1881/82). The government decided on the state’s name (the Kingdom of Serbs, Croats and Slovenes) and its emblems. It elected the Provisional People’s Representation tasked with preparing the terrain for the Constituent Assembly.

Characteristic of the domestic situation of the newly formed state were: farmers’ movements protesting against the unsettled agrarian issue; and, socioeconomic protests in the aftermath of the war and under the influence of the Russian revolution. This complexity – quite unexpectedly to the ruling class – manifested itself in the first elections (municipal elections in 1920) in which communists scored considerable success. The apparatus responded with repression (Obznana/Declaration of December 29, 1920).

Against the above-mentioned socioeconomic context and the aspiration toward a monarchy, and after two years of “hard bargaining” the Provisional People’s Council passed the Election Law (Sept. 3, 1920). Two of its provisions provoked fierce debates and imbued political relations with lasting mistrust. The Article 1 invested the King with the right to dissolve the Constituent Assembly before declaration of the Constitution. Besides, the Election Law provided adoption of provisional rules and regulations of the Constituent Assembly obliging MPs to pledge loyalty to the King at the very start. This, though justified by the necessity of ending up provisional arrangement and declaring the Constitution, caused strong criticism both in the parliament and the public and sowed the seed of mistrust in political relations of the heterogeneous state as the Kingdom of Serbs, Croats and Slovenes. Slobodan Jovanović himself admitted, “Both the Election Law and provisional rules and regulations were after depriving the Constituent Assembly of its sovereign character.”9 And, Aleksandar Fira, having analyzed the process, concluded with good reason that the two documents other, new links will only tie up with.

Even more divided was the parliament and general public over the Election Law’s provision on the absolute majority needed to adopt the Constitution. Considering the Corfu Declaration (July 20, 1927) Nikola Pašić and Dr. Ante Trumbić had signed on behalf of the Kingdom’s government and the Yugoslav Committee respectively, many politicians saw the provision as departure from the compromise and the issue of the state’s system left to the balance of forces – which the latter was. Confirming the will of all the three nations to unite in a single state, their representatives had agreed that it should be “a unique, constitutional and parliamentary monarchy under the crown of the Karađorđević dynasty.” They also agreed at the time that the parliament would be elected by general, equal and indirect vote of “the qualified majority ensured against any majorization.” The said majority should not be “tribal” but just numerical.10

Law theoreticians, historians and politicians argued that the Corfu Declaration was not a legal document and, therefore, not mandatory: because, they said, the royal government’s and the Yugoslav Committee’s representatives as negotiators at the Corfu conference that resulted in the Declaration, had not stood for two sides equally qualified – in legal terms – for signing bilateral agreements. And the Election Law formally rested on this. The Corfu Declaration’s moral and political significance meant not that the signatories were duty-bound by it.

What was it that the elections for the Constituent Assembly revealed?

The elections for the Constituent Assembly were held on November 28, 1920. The electorate amounted to 2,480,623 voters; 1, 664,265 or 64.95% cast their vote for 419 MPs.

The Democratic Party (established in 1919) won the biggest number of votes – 319,448 and gained 92 parliamentary seats. The second on the list was the oldest of Serbia’s parliamentarianism, the People’s Radical Party, with 151,603 votes and 39 seats; the Slovenian People’s Party led by Dr. Anton Korošec got 112,274 votes and 27 seats, the Social Democratic Party won 46,792 votes and 16 seats, the Croatian Peasants’ Party (People’s Front) 38,400/7, the Croatian Community 38,400/7, the National Turkish Organization 30,029/8, the Republican Party 18,136/3, and the Croatian Party of Rights 10,600 votes and 2 seats.

The outcome of the elections demonstrated: the electorate scattered into 22 parties; rise of communists and the anti-monarchic bloc (Stjepan Radić’s Republicans); and parliamentary seats won by parties that were either national or religious in character. Though the ruling class claimed that it rested on the unity of three nations, the new state turned out as dramatically composite. Bearing in mind a complex picture as such saying that the elections for the Constituent Assembly were relatively free when compared with all earlier elections in the Kingdom would not be a paradox.

Nothing signaled the state’s consolidation even once the provisional arrangement was over. Slovenian historian Jože Pirjavec, the author of one of the best histories of Yugoslavia – analyzing it, among other things from the angle of the reports by foreign diplomats assigned to the Kingdom – quotes one of the most moderate Serbian politicians of the time, Dragoljub Jovanović, saying after the September 1927 elections (and on the eve of dramatic developments in 1928-29), “The Parliament is a circus, comedy rules and the state is a madhouse.”11

Terror became the government’s modus operandi and behind it was the King. In response to social tensions communists were outlawed; and Croatian MPs were killed in the midst of the National Assembly and subsequently latent dictatorship shifted to an open one in response to national differences. Was such turn of events really unavoidable?

The public had mixed feelings about the first constitutive session of the Constituent Assembly (December 23, 1921) boycotted by MPs from the Croatian Republican Farmers’ Party. To those enthusiastic about it, that was a historical day. Others were anxious about what could come next. An anonymous commentator for Belgrade’s “Thought” magazine noted, “The trouble with composition of the parliament as such is not only in partisan division and hatred, but even more in basic political trends and antipodal stands about the new state.”12

Regent Alexander delivered his Address to the third parliamentary session in a row. Though treated as usual courtesy, the Address was timed to attain a fixed goal: to “confirm procedurally the non-sovereign character of the Constituent Assembly, as an assembly of monarchistically organized state.”13

Method adjusted to the goal aspired

The ratio of parliamentary caucuses – significant for adoption of the Constitution – changed in the Constituent Assembly. This relates to those formed by the Farmers’ Alliance, the Yugoslav Muslim Organization and Jamieth.14 Because of the growing terror MPs from the Communist Party walked out on the parliament. For other reasons such as the centralistic-unitarian system in the state MPs from the Yugoslav Club did the same. MPs from the Croatian Farmers’ Party had already left the parliament while MPs from the People’s Club refrained from voting.

The ruling Democratic-Radical coalition did its best to enlarge the parliamentary bloc willing to vote in the draft Constitution. It made an agreement with a faction of the Farmers’ Alliance and MPs of the Yugoslav Muslim Organization, remunerating the latter considerably. “Various means were used to win over MPs for the Constitution, from pressure to bribes given to individuals and groups as in the case of Jamieth or the Muslim caucus from South Serbia the members of which, bribed on the eve of voting, voted in the Constitution,” says historian Branko Petranović.15

In a variety of ways “devoid” of any alternative solution to the statehood issue and insured by the parliamentary rules and regulations that it could impose its solution on the rest, the ruling coalition was trying – though it needed not voting to secure legitimacy – to ensure strong partisan support. All in all, 258 MPs cast their vote for the Constitution: 223 voted for it and 35 against (89 MPs from the Democratic Party, 87 Radicals, and the rest from the Farmers’ Alliance, the Yugoslav Muslim Organization, Janieth, the Farmers’ Party and MP Spasoje Piletić said “yes.”).16

What deprived the Kingdom of Serbs, Croats and Slovenes of legitimacy was, above all, the manner in which its first, highest law was voted in. The public saw this procedure no less important than contents of constitutional provisions. After all, denial of qualified majority crucially determined social and national structure of the parliament and made majorization possible. And yet, almost the same could be said about the work on the St. Vitus Constitution and the elections for the Constituent Assembly: it was relatively independent from the goals of the ruling majority. Along with the governmental draft, scores of other drafts had been developed that contributed to jurisprudence and alerted of the state’s historical complexities that, as it turned out later, could not have been overcome either by the number of the living or the dead; and even less by force.

The government’s draft Constitution

It was Milenko Vesnić’s cabinet that – after several attempts – developed the draft Constitution. However, since his cabinet resigned shortly after the elections, the King entrusted a slightly amended draft to Nikola Pašić, the politician with biggest experience and international repute, whom he invested with premiership.

All parliamentary caucuses were most interested in the draft that, at the same time, triggered off debates in political and academic circles. What was most characteristic of these debates were deep differences in stands the elections for the Constituent Assembly had already hinted at: and swords were crossed over certain provisions as well as the draft as a whole.17

Under general provisions of the governmental draft the Kingdom was defined as constitutional, parliamentary and hereditary monarchy throned by the Karađorđević dynasty. Other provisions can be classified in two groups.

Loose provisions on civil rights make up one group. The authors and interpreters of these provisions were praising them as modern and liberal, and above all influenced by Europe’s theories of solidarity at the time, and then by the 1903 Constitution of the Kingdom of Serbia, a replica of the 1888 Constitution by which Serbia, like many other Balkan countries, looked up to Belgium’s liberal constitution; and, finally, under the influence of the Weimar Constitution.

The draft’s section on civic right provided that all citizens shall be equal before the law; no one shall be taken accountable or criminally punished for anything that is not a crime. Further on, it provided with certain limitations that private property was inviolable. It banished feudal relations. It guarantees the freedom of conscience and religion (all acknowledged religions were equal). It regulated the freedom of press (censorship can be imposed only at wartime). It warrants the freedom of assembly and association. It proclaimed obligatory, general and free education; it placed private schools under the state’s control.

The provisions in the second group were adjusted to what a large, unified state would want for itself (regulating the administration, the position of the King, the parliament, the executive branch the judiciary). Despite all the three branches of the government the King was “a constant in all the three,” whereas other bodies were just ‘cooperating’ with him.18 Both sections of the governmental draft ensured ‘pan-Serbian hegemony” in two ways: through the position of the King and organization of the executive branch.

Invested with absolute power the King was relativizing the parliament. He was declaring it open and closed, and was entitled to dismiss it. He was proclaiming laws the People’s Representation had passed. He was granting amnesties and pardons. He was the supreme commander and represented the country internationally. He was untouchable and unaccountable to anyone; unlike the rest he was considered of age when turning 18.

He was the pillar of the judiciary and he was the pillar of the executive branch. He was the one to appoint ministers and approve high officials. His position embodied the above-mentioned hegemony that implied strongly centralized government. And this, in order to have historical autonomies bypassed, was divided into districts, counties and municipalities. Initially, 600,000 inhabitants made up a district; the figure in the last of the drafts grew to 800,000.

The drafts the opposition and individuals submitted differed from the governmental one, especially those developed by political and academic elites. Paraphrased in the works of Slobodan Jovanović and Aleksandar Fira, the latter drafts perfectly testify of the new state’s manifold complexity manifested as early as in the elections for the Constituent Assembly. Under such circumstances any imposed constitution had to be, in historical perspective, just temporary. Tradition but also modern constitutionality was calling for compromise, especially in governmental functioning. Alternative drafts were alerting farsightedly against far-reaching consequences of no compromise. And so, the Yugoslav Club – speaking on behalf of ‘all Slovenes’ - predicted:

“Should the Constitution be declared against the will of the majority of Slovenes and Croats that would be an assault against popular unity that would eventually destroy the state. Imposition as such would not put an end to constitutional struggle but start it. This is why provinces with their historical tradition and social and economic specificities should not be banished with decrees. A necessary autonomy means consequent self-government within a province, and in accordance with acknowledged principles of parliamentarianism, which should permeate the entire system, from top to bottom…“19 (L.P. emphasis)

Partisan draft constitutions

What fundamentally differed partisan drafts from the governmental one was the type of governance (monarchy or republic) and the way in which the state was organized (centralism vs. decentralization in a federal or confederal form). While some advocates for a monarchy also advocated decentralization, other monarchists were calling for centralization; and, unlike these two, was the draft of the Serbian republican group and socialist Nedeljko Divac.

Two parties were standing for a parliamentary monarchy arranged close to federalism: Croatia’s People’s Club and Slovenia’s Yugoslav Community.

Though not represented in the Constituent Assembly, the Croatian Republican Party came public with a draft constitution of its own. It emphasized that the three nations were similar, and that Croats were not a tribe but a nation; consequently, it called for a confederation of “relatively loose ties between member-states.”

The Farmers’ Alliance’s draft called for a centralistic monarchy, while the Communist Party wished to see Yugoslavia as “a Soviet republic.”

Republican draft constitution

Diametrically opposite to “monarchist” drafts (either in a centralized or federal state) was the Republican draft. Though the party itself had a few MPs its draft is significant because of the principles it stood for.

Quite uncharacteristic of the “tradition and historical moment” the Republicans were saying, “We take that people’s unity can be in a republic only, and that in a republic only could citizens’ freedoms and rights be protected, as big as possible social equality attained, people freed from unnecessary tutelage of the administration, and parliamentary flaws that have become dangerous to people’s social welfare removed. Only a republic could guarantee people their peace of mind, strengthen their civic activism, inspire their humane and moral feelings, soothe the class struggle the monarchy has been constantly fueling, and capacitate the nation for keeping its head over the water of the big international game.”20

Independent drafts by non-partisan figures

Out of many drafts those developed by non-partisan figures attracted much public interest; and for two reasons – all those figures were authorities and after a compromise between a monarchy and a decentralized state.

Well-known Dalmatian politician Dr. Josip Smodlaka said, “The whole constitutional issue is about finding a golden mean between state interests and ideal freedoms.”21 In his opinion, the country should be divided into twelveThe St. Vitus Day Constitution of June 29, 1921, Yugoslavia’s First Constitution: The Unitarian-Centralistic Concept Wins against the Concept for a Complex Statee Jugoslav Committee did not submit any draft but, long before the Constituent Assembly, suggested strong local self-governments as the means for a compromise between unitarianism and federalism. A Unitarian himself, he thus came closer to the ruling majority although insisting that principles should respected or else in jeopardy.

Along with the one submitted by the republican bloc (communists, social-democrats and republicans) Stojan Protić’s draft added to more liberal views on the state issue.22 His draft defined the Kingdom of Serbs, Croats and Slovenes as a hereditary and parliamentary monarchy throned by the Karađorđević dynasty; the territory was divided into provinces, districts and counties. His draft was after a compromise between Serbs and Croats that would invest the unique state with a democratic character. Nevertheless, the general public was more sensitized to these questions during a polemic between himself, trying to secure unity in diversity through provinces that would not be federal units, and Nikola Pašić, advocating pure centralism.

Historians and law theoreticians recognized relative liberalism of St. Vitus Constitution’s provisions on social rights and civic freedoms, but not all of them the extent to which the practice relativized this liberalism; and even more how much was Serbia’s hegemony secured by the King’s absolute power. The masked dictatorship was tending towards open one, and centralism, as a key element of unity, was fermenting its disintegration.