Constitutional Court of B&H Decides: Citizens Constitutive on Whole Territory

A Step Towards the Real Goal

AIM Sarajevo, July 7, 2000

Regardless of the fact that the recent decision of the Constitutional Court of B&H on all three nations being constitutive on the whole territory of B&H was expected, and no matter how many arguments could be presented in favour of this decision, it is still hardly probable that any of the three constitutive ethnic groups have much reason to express too much pleasure. It was already made known to the public that the Constitutional Court of B&H has no instruments to implement this decision, nor has its reaching among members of the Constitutional Court (judges of Serb and Croat ethnic origin were against it) been deprived of extremely petty-political (and nationalistic) interpretations.

Extremist political lobbies in B&H have already criticised this decision saying that “two ethnic groups were outvoted”, disregarding, of course, the fact that members of the Constitutional Court of B&H must not be “representatives of ethnic groups” but that they are autonomous legal experts who do vote “in the name of the people”, that is by law and conscience, but not by anybody's political dictate.

In the Name of the People or in the Name of the Party

At least that is what it should be like. Or more precisely, that is what it is like in every legally organised country, but not here. It is pure mockery that two judges who are Croats have voted against this decision and Croat Democratic Community just a day later thunderously offered its full support to this decision. Indeed, it would have been mockery had this not actually been a tragically obvious game: the Croat judges have after all voted by order of their party (which allegedly “represents interests of the Croat people in B&H”!), but this party had to “wash its hands” in front of domestic and international public if by no other means by (formally) refusing to recognise the action of the judges who had obeyed its order!

The situation is quite similar when judges from the ranks of the Serb people are concerned, although they publicly and from the very beginning had declared that they were against making all three peoples constitutive in both entities, or in whole of B&H, so their voting “against” appears to be even more “moral” than the act of Croat judges! In such absurd nationalistic games (which not even the Constitutional Court of B&H is protected of), the only comforting thing is that the decision on three constitutive “nations” has been reached after all (even if by “outvoting” and even if with the help of three foreign judges) and that this decision is final and binding for the authorities in the entities, which therefore is no subject to any comments, or verification by parliaments. All entity parliaments have to do is immediately bring their entity constitutions in harmony with the Constitution of B&H. They will have plenty of time and plenty of reason to think about actual consequences of this act afterwards, because, let us be reminded, the constitutions of entities recognise constitutiveness only to the Serbs in Republika Srpska, and only to the Bosniacs and the Croats in B&H Federation, on the foundations of which whole pyramids of institutions of power were erected.

Soothing Syrup On Hot Heads

Reasons for absence of too much satisfaction with this decision are contained in the most essential – the fact that its “implementation” will meet with severe resistance among the very same extremist nationalistic groups which have until now also done their very best to have Dayton accords in all their elements, especially the most important ones, discreditted and obstructed.

One should expect that they will use special “energy” to oppose implementation of this decision of the Constitutional Court of B&H. But regardless how threatening the fear of that may be, there is the ultimate and perhaps the most probable variant – that High Representative will prevent with the force of his power every possible “parliamentary” quibbling and obstructing and force nationalistic combatants do what they must or – disappear from the political scene together with their concepts of power.

That is why this decision of the Constitutional Court of B&H should be welcomed with optimism after all. It is certainly important that it has been reached plenty of time before the November elections, that there will be enough time to develop realistic awareness of the idea of constitutiveness in the public of B&H and to cool off at least those who have been literally misled. Once they start feeling (by achieving their own rights) that this decision works for their benefit, the process of accepting the new situation will proceed faster and easier.

Challenge Before Elections

This decision will be a true challenge for the process of return of refugees and displaced persons, as well as for the achievement of the rights of all the citizens to have their property returned to them which is the key precondition for reintegration of multi-ethnic B&H. This ultimately means that it will soon be inevitable to raise the question of sustainability of the present system of division of B&H into entities.

It should also be expected that the decision of the Constitutional Court of B&H will inevitably set in motion the exceptionally important processes in the final formation of the election law for ensuring full equality of citizens in practising active and passive franchise on the whole territory of the state. This depends, of course, whether, after implementation of this decision of the Constitutional Court of B&H, amendments of the Constitution of B&H will be initiated. But, once the snowball of changes prescribed by this decision starts to roll, it will be difficult to stop it half-ways to the desired constitutional and legal structure of the state of B&H.

The process of implementation of Dayton peace agreement in general may from now on proceed much more rapidly and easily, under condition, of course, that primarily by will of the citizens, but if necessary by the power of High Representative as well, all those who have so far obstructed the peace process and normalisation of the situation in B&H and who have not given up on this job yet, are going to be definitely eliminated from the political scene in B&H.

“Others Still Waiting

Even after the decision on unlimited constitutiveness of the Serbs, the Croats and the Bosniacs, there will still remain the category of “others” in B&H, that is, the citizens of this country who do not belong to any of the three most numerous ethnic groups and who will still be treated as minorities. Nevertheless, this decision of the Constitutional Court of B&H is probably just the first phase of the process which will finally lead to the achievement of the highest ideal in every modern, legally organised state – constitutiveness of every citizen individually, of every individual human being, regardless of the ethnic group he/she might or might not belong to. With such hope it is worth believing that this decision is indeed of far-reaching importance for the future of this country and its citizens. But, if the road to this constitutiveness of the citizens in our case leads through this and such challenges, specific for historic circumstances in B&H which are utterly inapprehensible to foreigners, it should be welcomed not only because of the hope for ultimate individual emancipation, but because of due citizens' appreciation for the country which has for centuries known how to gather its different people under the idea of tolerance and co-existence.

Slavko SANTIC

(AIM Sarajevo)