The Constitutional Court of Serbia vs. the Constitution: Doctrine on the "substantive" law-making authority

The state of emergency instituted in the Republic of Serbia in 2003 demonstrated that the legal solutions of the 1990 Constitution on this subject matter were insufficient, given that the legal provisions did not prevent the abuse of this exceptional legal regime either in terms of duration or in terms of the measures taken to restrict human rights. Therefore, despite numerous shortcomings in regulating the institute of a state of emergency, the 2006 Constitution of Serbia provided improved solutions, aimed at establishing different guarantees against possible abuses of this institute. This is particularly prominent in the distribution of competences in the state of emergency regime, as well as in the additional protection of human rights. The National Assembly has been vested with the power to declare the state of emergency. In case the National Assembly cannot be convened, three state bodies are authorized to make a joint decision on this matter: President of the Republic, President of the National Assembly, and Prime Minister. The constitutionally guaranteed human and minority rights are to be respected and may not be suspended even during the state of emergency. The main deficiency of the 2006 Constitution is the vagueness of provisions on the application of an alternative procedure for declaring the state of emergency in situations when the National Assembly is unable to convene. However, Serbia's experience with the state of emergency during the COVID-19 pandemic in 2020 indisputably pointed to the fact that the Constitution, as a fundamental legal act, can never regulate the state of emergency in such a precise and detailed manner without leaving some open questions which may only be answered in practice. The Constitutional Court of Serbia was required to access the constitutionality of the decision on declaring the state of emergency, as well as the constitutionality of the measures taken to derogate human rights. The Court made two significant decisions but did not establish a consistent doctrine on a state of emergency. The challenges faced by the Serbian society have confirmed the fact that there is a crisis of the judicial function of the Serbian Constitutional Court, as the guardian of the Constitution. In such an environment, from the perspective of the rule of law principle, the Constitutional Court established an extremely dangerous doctrine of the "substantive" law-making authority. By accepting the mission to defend the current governing authorities, the Constitutional Court established a doctrine that may be applied in the future whenever it is deemed necessary to pursue the logic of political pragmatism rather than the principle of constitutionality. In order to properly understand the scope of the Constitutional Court doctrine on the "substantive" law-making authority, the first part of the focuses on the constitutional grounds for the adoption of emergency measures, while the second part provides a detailed analysis of the aforementioned doctrine.