A Comparative Perspective on the Balkan Constitutions and the space provided for the citizens

by teutavodo

Teuta Vodo and Eleni Stathopoulou

One of the major developments in the Balkan region after the ‘90s was the adoption of constitutions, which brought the expansion of the constitutionalization of rights having in this way a relevant impact on the citizens to exercise their rights. Even though the constitutions in the Balkan region were adopted according to the western model, the space provided for citizens’ rights may vary from one country to another. Therefore, our research question may be formulated as follows: what kinds of constitutions exist in the Balkan region? Which is the space for political activity provided for citizens in the Balkan constitutions? Is there a relation between the space provided in the Balkan constitutions for their citizens and the extent to which these latter exercise their rights? Furthermore, are civil rights stronger in terms of citizens’ political engagement based on the constitutions’ political character? Our main argument is that the space provided for political activism in these constitutions is that there is no direct relationship between the constitutions and the way people exercise their rights. We put forward a comparative study of two countries, Albania and Serbia, as two cases with distinct constitutional and historical backgrounds.


Key words: Balkans; civil rights; constitutions; social movements.

1 Introduction

The Balkan region is known for wars and nationalist extremist leaders but little is known about what is called “history from below”, the human side of history and citizens’ influence of governments’ policy-making. As Krastev puts it, democracy is marked not only by free and fair elections but also by the fact that citizens can also influence public policy. Democracy, in this view, is less a matter of institutional settings than of the relations between governments and citizens (Krastev 2002, 45). What citizens think and their actions matters at least as much as what governments do.

Making a clean break with the communist past is complicated by the fact that the region’s previous communist regimes were to a large extent ‘home grown’ (Batt 2007, 61). The end of Communist Party hegemony and post-war international order weakened the state (Bunce 1997, 352–353). A number of Balkan countries were classified as weak states because they were unable to implement development policies and to provide for all their citizens with human, financial and social security. Similarly Krastev (2002, 45) defines as “weak” a state that is unable to deliver the rule of law or protect human and property rights. Another source of weakness lies in the lack of state tradition, which does not go back very far. The Balkan states, for the aforementioned reasons, remained economically and politically weak (Danopoulos and Messas 1997, 8).

Assessing also legitimacy proved to be a serious challenge, which stemmed from profound social, political and cultural divisions linked to ethnic and national minorities, established within the boundaries of these states (Diamandouros and Larrabee 2000, 25). Arrogance and disregard for the rules of the game, and in particular for the opposition, was persistently displayed from the government side (Vejvoda 2000, 233). The current movement for citizen participation has its origins in the ’60s. In the politics of affluence and optimism, which it spawned, the belief was widespread that policy could and should be both more responsive to the people and more rational (Kweit and Kweit 1987, 34).

After the ‘90s, an unprecedented pattern of deindustrialization has taken hold parts of the region. As large-scale industry collapses and individual workers turn back to the countryside for survival, supplemented by ad hoc unregistered earning in the ‘grey’ economy (Batt 2007, 63). In the Balkans during the first decade, the demands of state building, national identity and ethnicity have to a significant degree distracted from the priorities of democracy- building and economic reform (Pridham 2000, 1).

A source of legitimacy of the state comes from its success in fulfilling its obligations towards its citizens. (Rakipi 2007, 265–266). Citizens’ influence may range from a position of policy dominance (value decisions) to one of minimal or non-involvement (technical decisions) (De Sario and Langton 1987, 216).

Therefore, in order to study the citizens’ role in the public policy and their dissatisfaction towards the state, we will focus in two countries, Serbia and Albania in the last two decades. The first part of the paper proposes a theoretical distinction of the constitutions, by describing the different categories of constitutions and in the second part we will go through the empirical examination by identifying the category where these two constitutions fall, the space provided for its people and the extent to which these latter exercise their rights. The empirical evidence will be analyzed through the referendums and the mass protests since the early ’90s until now.


2 Theoretical considerations on the constitutionalization of rights 

Constitutions are codes of norms which aspire to regulate the relationship between the government and the public by handling serious internal ethnic, linguistic, and religious differences, while others are written for a homogeneous population (Finer, Bogdanor and Rudden 1995, 1–6). Nevertheless, the constitutionalist doctrine that goes back to Benjamin Constant indicates that people’s sovereign power was never full and did not include the destruction of the very fundamentals of its existence by authorizing despotism. Fundamental human rights cannot be disposed of; even by people (Klein and Sajo 2012, 440). Some of the present texts say that constitutions were made into a constitution by ‘the people’, but this is not so (Finer, Bogdanor and Rudden 1995, 8). Most constitutions contain fictive or decorative passages as well as omitting many of the powers and processes met with in real life (Finer, Bogdanor and Rudden 1995, 3).

Constitutions are legal documents which contain ‘the rules of the political game’ (Hodder-Williams 1988) and manifestations of power where there are winners and losers (Hirschl 2004; Ginsburg 2003; Finkel 2004; Erdos 2010). They result from power struggles among elite groups in a nation; the resulting constitution may be similar to other constitutions, containing familiar restraints on government and providing the usual protection of rights; but instead of its being an expression of agreed ideas and ideals, the constitution is an instrument for securing positions of power. Constitutions are, first and above all, instruments of government, which limit restrain and allow the exercise of political power (Sartori 1994, 198).

They serve the perceived interests of the best-organized and therefore most powerful social forces (Holmes 2012). Thus, constitutions are manifestations of power (Hirschl 2004; Ginsburg 2003; Finkel 2004; Erdos 2010) and result from power struggles among elite groups in a nation; the resulting constitution may be similar to other constitutions but instead of being an expression of agreed ideas and ideals, the constitution is an instrument for securing positions of power (Contiades 2013). Constitutions are never impartial and never treat the powerful and the powerless at the same way. They serve the perceived interests of the best-organized and therefore most powerful social forces (Holmes 2012). Constitutions are examined from the point of view of the actors who write them and their strategic consideration, which builds on a line of contemporary research in political science (Hirschl 2004; Ginsburg 2003; Finkel 2004; Erdos 2010). The ruling elites accept constitutional constraints when it is in their interest to do so. Thus, constitutions emerge and their contents are determined by strategic considerations of ruling elites (Hirschl 2004).

Almost every state in the world today possesses a codified constitution. Yet the vast majority of them are either suspended, or brazenly dishonoured, or – if neither of these – are constantly and continually torn up to make new ones (Finer, Bogdanor and Rudden 1995). Constitutions channel and constrain the scope and direction of the power of government in general and the various organs of government in particular (Finer, Bogdanor and Rudden 1995). Their conception depends on ‘the relationship between the contents of constitutional documents and the fundamental character or form of the polity it is designed to serve (Elazar 1986).

The main and most general way for the people to exercise their sovereignty is through referendums. Among the numerous modalities of the referendum that can be found in constitutional texts or practices, the initiative is considered to be the most important. Most typologies of referendums are indeed based on this criterion and distinguish between ‘mandatory’ referendums, on one side, and ‘optional’ (or facultative) referendums, on the other side, with a distinction within the latter category between referendums initiated by institutional actors such as the executive, the legislative branch, or a parliamentary minority, and popular initiatives.

A good typology should focus on three basic variables, which measure the extent to which legislative power is shared with the people and/or the opposition. The first variable is the initiative, which applies only to optional referendums. But the fundamental divide is between government and non-government initiative. Government-initiated referendums are decided either by the executive alone, by the legislative alone, or, more frequently, by a common decision of the executive and the legislative. Non-government-initiated referendums are in the hands either of the opposition, or of a popular minority. The second variable is the author of legislation, which refers to the capacity of the initiator of the referendum to put a proposal of his own to the vote.

The third variable regards the scope of the referendum. Here a first distinction must be between referendums on constitutional revisions, which deal essentially with institutional issues, and referendums on ordinary legislation. Within the latter category, one should then differentiate according to the subject: institutional, international, territorial or other (Morel 2012, 508–509).

2.1 Albania

For good or for bad, the lack of strong historical roots and the heavy abuse of the nationalist ideology by the communists, strongly posed Albanians to have different experience from other Balkan countries. While these latter filled the post-communist vacuum with a collective identity based on nationalist myths, Albanians somehow fell back to where they had started their history of the formation of the nation: into a scattered array of clans trying to survive (Lubonja 2002, 101). The old elites pinned their hopes on a new combination of communism and nationalism (Schwimmer 2007, 116). Additionally, the post-communist Albania was affected both by the institutionalization of political democracy and the transition to a market economy (Schwimmer 2007, 116). Poorly institutionalized parties, their lack of strong social bases or effective governing programmes, a legacy of authoritarian power structures (Pettifer 2000, 247) and the weakness of civil society are characteristics of Albania in the ‘90s. The encouragement of civil society was a highly partial process, with strong state support for business and religious institutions but undermining of basic rights in many fields (Pettifer 2000, 242).

There was a special need to adopt all the legal provisions since the regime collapse. Nonetheless, it is only in 1998 that the Constitution of Albania was adopted. In the Albanian constitution, the concept of ‘people’ is explicitly mentioned in the following statement of the preamble: ‘the sovereignty in the Republic of Albania belongs to the people.No notion such as ‘citizens’ is mentioned, as Albania is a homogenous country that does not deal with minority rights issues such as other Balkan countries.

Furthermore, in the preamble is stated that the exercise of sovereignty is formulated as follows: ‘the people exercise sovereignty through their representatives or directly’. As it is shown from the formulation of the aforementioned preamble of the Albanian constitution, there is not an expressed and explicit explanation of how this sovereignty should be exercised directly. In comparison with many other written constitutions, the formulation of how the sovereignty should be exercised, is limited and does not offer a mean to guide the citizens into exercising their rights. This is relevant in a fragile and new democracy because as Rakipi (2007, 272–273) argues the institution-building in Albania is a top-down approach and broadly speaking, the institutions have an important role in shaping the development of individuals within their role (Bell 2006, 350).

As mentioned in the introduction, the empirical evidence will be shown through the referendums and the mass protests. Concerning the referendum, in the Albanian constitution, it is referred as follows: “The people, through 50.000 citizens who enjoy the right to vote have the right to a referendum for the abrogation of a law, as well as to request the President of the Republic to hold a referendum on issues of special importance” (Article 150). In such way, in two decades, the Albanian citizens have been appealed three times to vote in a referendum.

The first referendum was held on 6 November 1994 on the approval of a new constitution It was on October 10th 1994 when the National Assembly approved the draft constitution to be passed by referendum. According to the polls, 84.43% of the population participated in the referendum where 41.70% voted in favour and 53.89% against. The referendum rejected the new constitution as the proposed draft conferred too much power to the president.

The second referendum was held on 29 June 1997 on restoring the monarchy. In 1997, Leka Zogu came back to Albania and the government agreed to organize a popular referendum on restoring monarchy. The referendum paradoxically was held together with the parliamentary elections of 29 June 1997. As Albanians voted for new deputies they were also asked at the same time to vote for or against monarchy. Each vote, for or against the monarchy, counted contra monarchy. However a referendum was held and central Election Commission announced that monarchy won a 20% share of the vote.

Leka Zogu decided to appeal and the court judged the result equal to 37% in favour of the monarchy. Despite the fact that the result was figured as being higher, nevertheless it did not reach the necessary quota and was considered a failure (NOA 2011). Years later Berisha stated that the results of the referendum held in 1997 were manipulated, while the Albanian citizens voted for their king (Shqiptarja 2011). It was argued that one-third of the voters were in favour of the restoration of the monarchy but 23% of the votes were declared invalid (Investigim Lajmi 2012).

The third referendum was held for the approval of the Constitution, which passed in 22 November 1998. After the 1997 turmoil, the newly elected Albanian government was encouraged by national and international actors to prepare the constitution draft as an urgent need for the state of right in Albania and put it to a popular referendum.

The Constitution enshrines the basic principles of the state and the sovereignty of the Republic of Albania, which belongs to the people, who exercise it through their representatives elected by direct vote; it guarantees the independence, integrity of the Albanian state, respect for basic rights and freedoms, religion. The Constitution is the supreme law of the Albanian democracy whose provisions are directly applicable.

A fourth referendum was presumed to be held in 2013. The aim was to hold a popular referendum against the importation and waste recycling from EU countries. The civic movement “Alliance against Import of Fertilizers” managed to collect sixty thousand signatures. The referendum has historical significance because it is the first in post-communist politics outside the influence of political parties. But it also has another value: the Albanian citizens which were generally characterized by apathy reacted for the first time in the name of a communitarian issue without taking into account their political affiliations. In the end, the referendum was not held because the elections took place and, as promised during the electoral campaign, the new elected government nullified the law for the importation of waste recycling.


2.1.1 The role of mass protests in political life and public policy

Since the late December 1989, demonstrations of students took place in Shkoder area (northern Albania) (Champseix and Champseix 1990, 310; Keesing 1990, 37618–37619). They were the first timid attempts against food shortages and democratic reforms, which kept on going in January 11th 1990 (Vickers 1995, 20). Consequently, as early as January 1990, the First Secretary of the Party and Head of State announced modest changes such as more popular election of officials, more reliance and less central planning, free sale of agricultural surpluses and on February 1990 he declared presidential rule by naming a provisional government and a small presidential council (Clunies and Sudar 1998, 56–58).

When the apparatus of state socialism began to be dismantled in 1991, one major and immediate impact of exposure to global processes was Albanians’ realization of the impoverishment and inadequacies of their country in comparison to its neighbours (Hall 1999, 167–168). On 1st July 1990, there were ‘unprecedented anti-government street demonstrations’ (Keesing 1990, 37618-37619). On December 1990, mass protests spread all over the main cities; the demands were an end to one-party rule, multiparty elections, and changes in the economic structure (Keesing 1990, 37924). Condition worsened in 1991 through arrests and resignation of government leaders and the production-supply system very largely broke down. There was a wave of destruction of public property and ‘spontaneous privatizations’ of land (Clunies and Sudar 1998, 61).

A second period of democratic transition goes from the legalization of independent parties during the demonstrations of December 1990 until the election at the end of March 1991, a time of emerging hardship and serious uncertainty. From the election of March 1991 and the election of March 1992, the unrest continued. In 1991, the Prime Minister Fatos Nano resigned after protests at economic conditions and killing of opposition demonstrators.

In the following parliamentarian election, the Party of Labour of Albania won with about two-thirds of the vote but demonstrations, riots and strikes continued reaching a pitch in November (Clunies and Sudar 1998, 58–60). The time frame 1992–1996 represented the time of most intense reforms (Lubonja 1993, 1).

In 1997, the fraudulent pyramid investment schemes collapse, costing thousands of Albanians their savings and triggering anti-government caused mass protests known also as the Lottery Uprising.[1] The pyramid schemes started to grow in 1996 marking an artificial economic development. As a result, a nationwide turmoil followed for several months. The weapon depots were opened, which was followed by the spread of anarchy chaos and, breakdown of state apparatus (police, prosecutors, judges etc.). The popular riots took place in the whole country. The unrest in most of the Albanian regions and the refusal of the government to resign had a strong impact in terms of trust in the institutions. Thus, the collapse of the financial pyramids scheme made the state to lose credibility.

In 1998, violent anti-government street protests aimed at the resignation of the prime minister. The protests took place following the murder of the historic opposition leader Hajdari who was shot dead by an unidentified gunman.

In 2004, the Albanian opposition stages angry demonstration in the capital in order to demand the resignation of the prime minister and protest against government failure to improve living standards.

In 2008, a mass protest led by the opposition asked the resignation of the government after the explosion of an ex-military ammunition depot occurred in the village of Gërdec with 26 deaths and 300 injured.[2] The Government was accused of corruption in this affair of arm trafficking of Chinese artillery sold to US army in Afghanistan.

In 2009, the opposition party began a series of demonstrations in the capital in protest against alleged vote rigging in the 2009 elections. In 2010, tens of thousands of people marched through Albania’s capital to demand the reopening ballot boxes from last year’s election, amid claims of vote rigging.

From the above analysis is evident that throughout two decades, the total of referendums and mass protests taking place in Albania were mainly of political character. In such manner, they are animated by the opposition asking resignation of the party in power. Very little rights are attributed to the citizens so they can freely exercise them with the result to be heard by their governments. All the protests animated by the opposition were propagated as political from the part of the government. The point of views and requests of the citizens were not been taken into account. One differentiation has been noticed only in 2013 whereas mass protests took place concerning environmental issues and many citizens chose to protest without being affiliated to a political party.


2.2 Serbia

In 1990, after the breakdown of communism in Europe and in the course of disintegration of the Socialist Federal Republic of Yugoslavia, the first Serbian Constitution was adopted. The institutional system that resulted from the Constitution, in the first phase of the constitutional period (1990–2000), was clearly dominated by the manipulative and authoritarian presidency rule of Milosevic, whose substantial power was stemming from his direct popular election and the strong constitutional authorities he enjoyed (Miller 1997, 179). Although in 1997 he was elected president of the Yugoslav Federation, he continued to influence strongly the Serbian political life in the position of the President of the Republic of Serbia.

Furthermore, one has to take into account also that war left an indelible mark in the ‘90s. The social and economic devastation, the sanctions, the failure of the regime and its supporters to satisfy the nationalist feelings that had cultivated in the first years – ethnificating every aspect of the political life (Offe 1993, 6) – posed enormous obstacles to the democratization process of the country, although the democratic institutions were already there. During the demonstrations in the years 1996–1997 oppositional leaders described the regime as a dictatorship and totalitarian as opposed to authoritarian, while others have surmised that it is somewhere between a democracy and a dictatorship, clearly depicting a distinction between formal democratic rules and the lack of a substantive democratic regime (Klador and Vejvoda 1997, 62-63).

After Milosevic was overthrown in 2000 and the democratic opposition took over, the two parties went into an ongoing political infighting concerning whether or not there was a need for a new Constitution. According to Kostunica, leader of the Democratic Party of Serbia (DSS), no radical institutional changes were needed since the Constitution and laws during the Milosevic regime were not anti-democratic per se, but were highly misused by him. Djindjic, leader of the Democratic Opposition of Serbia (DOS) and winner of the 2001 elections, on the other hand, supported that the existing then Constitution and institutions of the system were unacceptable and that they had to be either replaced or ignored. The 5th of October 2000 was not only a mere change of regimes, as Kostunica believed, but a revolution that manifested the need for the Milosevic Constitution to be replaced and demonstrate a clear distance of the old and deeply autocratic and corrupted system (Pribicevic 2008, 60).

The Serbian Parliament after an ongoing debate for years (Pajvancic 2010, 44–45) voted in 2007 a new Constitution, which was approved in a constitutional referendum held on 28-29 October 2006. The 2006 Constitution Preamble defines the basic principles of the Serbian Constitution, among others the principle of popular sovereignty (Serbian Constitution 2006, Art. 2), which can be exercised with free election of representative bodies and the direct exercise of power, in a referendum or a popular initiative. Serbia is the creation of the Serbian people, where all its citizens as well as the ethnic communities are equal. Also it is emphasized that the Autonomous Province of Kosovo and Metohia have a status of substantial autonomy within the sovereign state of Serbia.

The citizens have the right in referendum to determine the proposal and decide on establishing, abolishing and joining of autonomous provinces (Serbian Constitution 2006, Art. 182 § 3) as well as on the territory of the autonomous province (Serbian Constitution 2006, Art. 182 § 4). The National Assembly can also call for a referendum concerning issues that fall within its competence (Serbian Constitution 2006, Art. 99 § 1 Item 2). The subject matter of a referendum may not include the obligations from international contracts, laws pertaining to human rights, financial laws, budget and financial statement, proclamation of the state of emergency, amnesty, and other issues pertaining to the electoral competencies of the National Assembly (Serbian Constitution 2006, Art. 108 § 2). Moreover the constitutional referendum is recognized. This referendum is mandatory if the revision of the Constitution relates to the Constitution Preamble; the Constitution principles; human and minority rights and liberties; governance system; proclaiming the states of war and of emergency, as well as derogation from human and minority rights in states of war and of emergency; procedure for amending the Constitution (Serbian Constitution 2006, Art. 203 §7). Concerning the revision of other parts of the Constitution, these may be scheduled by an optional referendum (Serbian Constitution 2006, Art. 203 §6). Popular sovereignty is directly exercised by the popular initiative. The Constitution also particularly defines the right of the citizens to propose legislation (legal initiative) (Serbian Constitution 2006, Art. 107 §7) provided that the proposal is corroborated by at least 30,000 voters, the right to propose revision of the Constitution (Constitutional initiative) (Serbian Constitution 2006, Art. 203 § 1) if the proposal is corroborated by 150,000 voters, and the right to call for a republic referendum (Serbian Constitution 2006, Art. 108 § 1) upon the request of the majority of all deputies or at least 100,000 voters.

Although the institution of the referendum pre-existed in the 1990 Constitution and although the 2006 Constitution provides all concrete principal guarantees for citizens to participate and propose a referendum (Serbian Constitution 1990, Art. 2; Serbian Constitution 2006, Art. 56), however in the Serbian political history, the institution has been used only on a minor scale. The first time to be implemented was in 1990 in order to adopt the new constitution, which also gave an end to Kosovo´s autonomous status and abandoned the one-party communist system, providing however the basis for the one-man rule of Milosevic (Hayden 1992, 660). A referendum on Serbia’s state symbols was held on May 31, 1992 in Serbia to decide the republic’s flag, coat of arms and the anthem, which was initiated by the political party in opposition. In 1998, Serbian President Slobodan Milosevic proposed a referendum, where voters were asked “Do you approve the participation of foreign representatives in solving the problems in Kosovo and Metohija?”. The last time the Serbian people had an opportunity to exercise direct democracy through referendum process was in 2006, within the constitutional procedure for adoption of the new constitution. Due to lack of public debate Jovanovic, the President of the Liberal Democratic Party (LDP), Canak, the President of the League of Social Democrats of Vojvodina (LSDV), and Kandić, the Director of the Humanitarian Law Centre (HLC) were among others the ones that protested against (Belgrade Centre for Human Rights 2007, 253–255). Almost in all referendums the electoral response was insufficient.

On the other hand, according to Pavlovic, the right to popular initiative is used more frequently, although it is hard to claim that it has much effect. Illustrative of the ineffectiveness of the popular initiative is the case of the coalition of civil society organizations and their effort to amend the Law on Access to Information of Public Importance and propose a Law on Classification of Information to the Serbian Parliament. They gathered 70.000 signatures delivered it to the Parliament on December 7th 2007, creating obligation for the President of the Parliament to forward the proposed initiatives to all the deputies, appropriate committees and the Government, in accordance with Articles 137 and 138 of the Rules of Procedure of the National Assembly. Although it was mandatory that a valid popular initiative finds its place on the agenda of the next sitting, there were no developments in this process before the interventions of the Civil Defender (the Ombudsman) and the Commissioner for Free Access to Information of Public Importance (Pavlovic 2010, 117).


2.2.1 The role of mass protests in political life and public policy

In the years 1991, 1992 and 1993 mass anti-war and anti-regime protest took place in Serbia however brutal police interventions swept the demonstrators off the streets and plunged the country into a rollercoaster of war, nationalist euphoria, and socio-economic disaster. In terms of opposition, the resulting war-tiredness, disillusion with political initiative, preoccupation with everyday life survival and massive outmigration by the young and educated, hardly provided a fertile soil for action (Pribicevic 2008, 54).

In 1996 things were different. The post-Yugoslav wars were over and lost, and the corrupted regime provoked a wave of discontent and anger, by committing electoral fraud. Hundreds of thousands of people were demonstrating for almost three months (Jansen 2000, 395). In 1996– 1997 hundreds of thousands were again on the streets against their own government and it had become clear that the street protest in Serbia was not simply an ephemeral upsurge. The regime manipulating the media continued to ignore the demonstrations in its news and this fired up the protesters and the popular energy. The demonstrations brought together a diverse array of people bound together by anti-Milosevic feelings, which conveyed an unspecified anti-regime discourse (Mimica 1997, 11). In order to quell mass protests the government was forced to make concessions and recognize the opposition’s electoral victories in 14 of Serbia’s 19 biggest cities. Although the demonstrations achieved to redress the election fraud, the opposition coalition Zajedno (Together), fell apart shortly after this (Jansen 2001, 37).

Additional cracks in the political regime emerged on the eve of the 2000 elections for the federal Yugoslav presidency, the federal assembly, and city councils. Milosevic, who was still in power and whose term was set to expire in July 2001, called early presidential election for September 2000. The student movement Otpor recognized the early presidential elections as an opportunity for ousting Milosevic from office. Also several substantive political changes increased the odds of mass mobilization against the regime (Nikolayenko 2012, 142–143). At the same time, there were also widespread concerns that Milosevic would manipulate electoral procedures to stay in power. Indeed, after Milosevic losing the elections, the Federal Constitutional Court declared the results of the election invalid and that new ones did not have to be called until the end of Milocevics term in office (July 2001). During the course of the 5th October hundreds of thousands descended on the capital. They joined the half-million Belgraders who had already gathered in front of the federal parliament and other government-controlled buildings, storming altogether later in the buildings (Krnjevic-Miskovic 2001, 103). By the end of the day the opposition was in control.

On February 2011 popular dissatisfaction with the government, urges about 70.000 people in Belgrade, to take to the streets in an anti-government protest a major rally by the opposition Serbian Progressive Party (SNS). The SNS, Serbia’s main opposition party, is calling for early elections because of the “poor state of the country”, explained party president Nikolic (The Economist 2011). The same happened in April, when 50.000 of supporters of Serbia’s main opposition Progressive Party rallied, demanding that the government call early elections this year. Nikolic, the leader of the Serbian Progressive Party, SNS, announced to go on a hunger strike until President Boris Tadic announces the date of early parliamentary elections (Voice of America 2011). The Progressives asked that the government call early elections for December.

Our overview above has shown that, even if the referendum as well the popular initiative are considered to be instruments of a so-called direct, bottom-down democracy, as it is obvious from the aforementioned this is not the case in Serbia. The authoritarian rule and regime of Milosevic in the 1990s did not allow any free space for initiatives to develop, even when the party in government or in opposition would initiate the referendum, there was no room for public debate, since the media were directed by Milosevic and his supporters.

A country with a troubled history, with Kosovo casting a long shadow over the political life and a drained economy was difficult to grow an active civil society that would take initiatives. Even if the constitutional and legal preconditions pre-existed in order to empower citizens and civil society, in the form of a referendum and popular initiative, without a political culture that would include civil society organizations playing a central role, the practice would fail the expectations.



3 Conclusion

The aim of this paper was to confront the space provided in the constitutions of Albania and Serbia and the effective rights exercised by the citizens. For what concerns Albania, whereas there is an effective space provided for the citizens in the Albanian constitutions we have found that these latter have not been exercised neither by the referendums nor by the mass protests. In all respects, in the first decade (1991–2000), only few protests took place and even those were mainly animated by the opposition by asking the party in power to resign. No protests on the life conditions have taken place with the initiative of the citizens. Even in the second decade, we see a weak civil society and a weak opposition yet. This is demonstrated not only by the fact that all the protests in the second decade were animated by the opposition but the nature of requests by the protesters were focused on the government resignation instead of pointing to their own aims and interests. Serbia proves to be quite a similar case and confirms our initial argument. Although the constitutions adopted in the post-communist era, indicated an attempt to break with the past, and in the relevant texts all the prerequisites are provided and guaranteed in order to fulfil citizen empowerment and party competition, the space provided in the constitution is mostly used by the political parties in opposition. It is true though that historically speaking, referendums around the world have been used mainly by opposition parties and only over time the institution starts to shift into the hands of civil society (Serdült and Welp 2012). In newly established democracies, as Serbia and Albania, it is common referendums on sovereignty or independence to be used in times of crises, in societies in transition.




Batt, Judy. 2007. The Western Balkans – Comparisons with Central Europe. In The Balkan Prism; A Retrospective by Policy–Makers and Analysts, eds. Deimel, Johanna and Wim P. Van Meurs, 55–64. München: Sagner.

Belgrade Centre for Human Rights. 2007. Human Rights in Serbia 2006. Legal Provisions and Practice Compared to International Human Rights Standards. Available at http://english.bgcentar.org.rs/images/stories/Datoteke/human%20rights%20in%20serbia%202006.pdf.

Bell, John. 2006. Judiciaries within Europe: A comparative review. Cambridge: Cambridge University Press.

Bunce, Valerie. 1997. Conclusion: The Yugoslav Experience in Comparative Perspective. In State-Society Relations in Yugoslavia 1945–1992, eds. Bokovoy, Melissa, Irvine, Jill and Carol Lilly, 345–367. Basingstoke: Macmillan.

Champseix, Elisabeth and Jean-Paul Champseix. 1990. 57 Boulevard Stalin. Paris: Editions La Découverte.

Clunies-Ross Anthony, Sudar Petar. 1998. Albania’s Economy in Transition and Turmoil: Policies, Adaptations and Reactions, 1990-97. Aldershot, UK: Ashgate.

Contiades, Xenophon. 2013. Constitutions in the Global Financial Crisis: A Comparative Analysis. London: Ashgate.

Danopoulos, P. Constantine and Kostas G. Messas. 1997. Ethnonationalism, Security, and Conflict in the Balkans. In Crises in the Balkans, views from the Participants, eds. Danopoulos, P. Constantine and Kostas G. Messas, 1–18. Boulder: Westview Press.

De Sario, Jack and Stuart Langton. 1987. Toward a Metapolicy for Social Planning. In Citizen Participation in Public Decision-Making, eds. De Sario, Jack and Stuart Langton, 205–221. New York, Westport, London: Greenwood Press.

Diamandouros, P. Nikiforos and Stephen F. Larrabee. 2000. Democratization in South-Eastern Europe; Theoretical considerations and evolving trends. In Experimenting with Democracy, Regime change in the Balkans, eds. Pridham, Geoffrey and Tom Gallagher, 24–64. London and New York: Routledge.

Elazar, J. Daniel. 1986. Exploring federalism. Tuscaloosa: University of Alabama Press.

Erdos, David. 2010. Delegating Rights Protection: The Rise of Bills of Rights in the Westminster World. Oxford: Oxford University Press.

Finer, E. Samuel, Bogdanor, Vernon and Bernard Rudden. 1995. Comparing Constitutions. Oxford, New York: Oxford University Press.

Finkel, Jodi. 2004. “Judicial Reform in Argentina in the 1990s: How Electoral Incentives Shape Institutional Change.” Latin American Research Review 39 (3): 56–80.

Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in East Asia. Cambridge: Cambridge University Press.

Hall, R. Derek. 1999. “Representation of Place: Albania.” The Geographical Journal 165 (2): 161–172.

Hayden, M. Robert. 1992. “Constitutional Nationalism in the Formerly Yugoslav Republics.” Slavic Review 51 (4): 654–673.

Hirschl, Ran. 2004. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press.

Hodder-Williams, Richard. 1988. The Constitution (1787) and Modern American Government. In Constitutions in Democratic Politics, ed. Bogdanor, Vernon, 72-104. Aldershot: Gower Publishing.

Holmes, Stephen. 2012. Constitutions and Constitutionalism. In The Oxford Handbook of Comparative Constitutional Law, ed. Rosenfeld, Michel and András Sajó, 189–216. Oxford: Oxford University Press.

Investigim Lajmi. 2012. Leka II: Berisha dhe Nano premtuan referendum për monarkinë (Leka II: Berisha and Nano promised referendum on the monarchy). Available at http://gazeta-lajmi.info/leka-ii-berisha-dhe-nano-premtuan-referendum-per-monarkine/.

Jansen, Stef. 2000. “Victims, Underdogs and Rebels: Discursive Practices of Resistance in Serbian Protest.” Critique of Anthropology 20 (4): 393–419.

Jansen, Stef. 2001. “The streets of Beograd. Urban space and protest identities in Serbia.” Political Geography 20: 35–55.

Keesing’s Record of World Events. 1990. Unrest-Foundation of opposition party Government and party-changes, vol. 36, December 1990.

Klador, Mary and Ivan Vejvoda 1997. “Democratization in Central and East European Countries.” International Affairs (Royal Institute of International Affairs 1944-) 73 (1): 59–82.

Klein, Claude and András Sajó. 2012. Constitution-making: process and substance. In The Oxford Handbook of Comparative Constitutional Law, eds. Rosenfeld, Michel and András Sajó, 419–441. Oxford: Oxford University Press.

Krastev, Ivan. 2002. “The Balkans: Democracy without Choices.” Journal of Democracy 13 (3): 39–53.

Krnjevic-Miskovic, Damjan. 2001. “Serbia’s Prudent Revolution.” Journal of Democracy 12 (3): 96–110.

Kweit, Mary Grisez and Robert W. Kweit. 1987. The politics of policy Analysis: the role of Citizen Participation in Analytic Decision-Making. In Citizen Participation in Public Decision-Making, eds. De Sario, Jack and Stuart Langton, 19–37. New York, Westport, London: Greenwood Press.

Lubonja, Fatos. 1993. “Te respektohet Brezi i Drejtesise” (The state of right to be respected). Koha Jone 18 February. Cited in Tarifa, Fatos and Jay Weinstein. 1995. “Overcoming the past: De-communization and reconstruction of post-communist societies”. Studies in Comparative International Development 30 (4): 63–77.

Lubonja, Fatos. 2002. Between the glory of a Virtual World and the Misery of a Real World. In Albanian Identities: Myth and History, eds. Schwandner-Sievers, Stephanie and Bernd Jürgen Fischer, 91-103. London: C. Hurst and Co. Publishers.

Miller, Nicholas John. 1997. A failed transition: the case of Serbia. In Politics, Power and the Struggle for Democracy in South-East Europe, eds. Dawisha, Karen and Bruce Parrott, 146–188. New York: Cambridge University Press.

Mimica, Aljoša. 1997. “The awakening of civil society.” Sociologija 39 (1): 5–14.

Morel, Laurence. 2012. Referendum. In The Oxford Handbook of Comparative Constitutional Law, eds. Rosenfeld, Michel and András Sajó, 501–528. Oxford: Oxford University Press.

Nikolayenko, Olena. 2012. Origins of the movement’s strategy: The case of the Serbian youth movement Otpor. International Political Science Review 34 (2): 140–158.

NOA. 2011. I treti i vërteti? Pse Leka Zogu II ka më shumë shanse të bëhet Mbret i Shqiptarëve. (Why Leka Zog II is more likely to become King of Albanians?) Available at http://www.noa.al/artikull/i-treti-i-verteti-pse-leka-zogu-ii-ka-me-shume-shanse-te-behet-mbret-i-shqiptareve/122156.html

Offe, Claus. 1993. “Ethnic Politics in East European Transitions.” Zentrum für Europäische Rechtspolitik, Diskussionspapier 93 (1): 22–38.

Pajvancic, Marijana. 2010. The Basic Principle of the Constitutional State – The Constitution of Serbia. Law and Politics 8 (1): 43–64.

Pavlovic, Dejan. 2010. Open Parliaments: The Case of Serbia, South East Europe. In Open Parliaments. Transparency and Accountability of Parliaments in South East-Europe, ed. Smilov, Daniel, 117–134. Sofia: Friedrich Ebert Stiftung.

Pettifer, James. 2000. Albania: the democratic deficit in the post-communist period. In Experimenting with Democracy, Regime Change in the Balkans, eds. Pridham, Geoffrey and Tom Gallagher, 237–248. London and New York: Routledge.

Pribicevic, Ognjen. 2008. “Serbia —From Authoritarian Regime to Democracy.” Serbian Studies: Journal of the North American Society for Serbian Studies 22 (1): 53–64.

Pridham, Geoffrey. 2000. Democratization in the Balkan countries, From Theory to practice. In Experimenting with Democracy, Regime change in the Balkans, eds. Pridham, Geoffrey and Tom Gallagher, 1–23. London and New York: Routledge.

Rakipi, Albert. 2007. Weak states and Development – Rethinking the Outsider’s Response. In The Balkan Prism; a retrospective by Policy-Makers and Analysts, eds. Deimel, Johanna and Wilm Van Meurs, 263–276. München: Verlag Otto Sagner.

Republic of Serbia. 1990. The Constitution of the Republic of Serbia. Belgrade. Available at http://unpan1.un.org/intradoc/groups/public/documents/untc/unpan019071.pdf.

Republic of Serbia. 2006. Constitution of the Republic of Serbia. Belgrade. Available at http://www.parlament.rs/upload/documents/Constitution_%20of_Serbia_pdf.pdf.

Sartori, Giovanni. 1994. Comparative Constitutional Engineering: An inquiry into structures, Incentives and Outcomes. London: Macmillan.

Schwimmer, Walter. 2007. Clash or Dialogue of Civilizations. In The Balkan Prism; a retrospective by Policy-Makers and Analysts, eds. Deimel, Johanna and Wilm Van Meurs. 115-126 München: Verlag Otto Sagnerr.

Serdült, Uwe and Yanina Welp. 2012. “Direct Democracy Upside Down.” Taiwan Journal of Democracy 8 (1): 69–92.

Shqiptarja. 2011. Berisha: Leka Zog Berisha: Leka Zogu I do përcillet si mbret, referendumi u manipulua (I will be treated as king; the referendum was manipulated). Available at http://www.shqiptarja.com/lajme/2706/berisha-leka-zogu-i-do-percillet-si-mbret-referendumi-u-manipulua-66030.html.

The Economist. 2011. Protests in Serbia. Belgrade calling. Available at http://www.economist.com/node/18114893.

Vejvoda, Ivan. 2000. Democratic Despotism: Federal Republic of Yugoslavia and Croatia. In Experimenting with Democracy, Regime Change in the Balkans, eds. Pridham, Geoffrey and Tom Gallagher, 219–236. London and New York: Routledge.

Vickers, Miranda. 1995. The Albanians: A Modern History. London: I. B. Tauris.

Voice of America. 2011. 50,000 Protest Government in Serbia. Available at http://www.voanews.com/content/article-50000-protest-government-in-serbia-119977734/138137.html.

* Teuta Vodo is a senior PhD Candidate as well as a Teaching and Research Assistant at the Department of Political Science in the Free University of Brussels since 2010. Her research interests lie in the fields of constitutional studies, law and courts, and judicial systems. E-mail: teutvodo@ulb.ac.be. Eleni Stathopoulou is a senior PhD Candidate at the Department of Political Science and History at Panteion University in Athens. She specializes in the areas of political sociology (trust, participation, and public opinion), political institutions and democratic theory. E-mail: eleni.stathopoulou@gmail.com.

[1] A Ponzi scheme is a fraudulent investment operation that pays returns to its investors from their own money or the money paid by subsequent investors, rather than from any actual profit earned by the individual or organization running the operation.

[2] The sources are provided by national newspapers describing a detailed historical background and the practices encountered.