The Dilemma between Jurispridence and Justice

Judiciary in Sarajevo Canton

AIM Sarajevo, 9 May, 1997

There are just a few people in state administration who actually lost their jobs when the cantons on the territory of the Federation were finally constituted. It seems that among these exceptions are only judges, moreover only those who did not seem sufficiently "apt" for the personnel managers from the ruling parties.

The election of judges of the Cantonal Court in Sarajevo turned into a scandal which exceeds cantonal limits and questions sincerity of formal and verbal advocating of independent judiciary.

Out of the 37 judges of the District Court in Sarajevo, only twenty two were elected for the new Cantonal Court, although even cantonal minister of justice, Jusuf Zahiragic, assessed that normal operation of this Court would require forty judges.

The criteria according to which twenty two judges were were found to be eligible and the others were not, have remained in the dark at least for the public. The official explanation according to which accomplishments at work, qualifications and age (with preference given to younger judges!) were taken into account, could hardly have been the only reason why the remaining 15 judges have not been elected.

The few representatives of the opposition in the cantonal assembly warned that only Bosniacs were among the elected judges, after which they were promised that in election of additional judges, ethnic origin would be taken into account. When and whether at all there will be additional election of judges will depend on the assessment of the newly elected President of the Cantonal Court, Azra Omeragic.

It is understandable that, due to the absolute majority of members of the Party of Democratic Action (SDA) among the deputies in the Cantonal Assembly, this election of judges "in stages" at the proposal of minister Zahiragic, was adopted without any problem and unnecessary questions.

    This, however, did not put an end to the whole case.

Having realized that passing over this case in silence would probably boomerang against them, the trade union of administration workers demanded re-examination of criteria for election, as well as that judges who were not elected in the first round be enabled to compete for the post under the same conditions their colleagues had.

A public competition was planned for filling up the remaining vacant judges' posts in the Cantonal Court, in order to enable all citizens who meet the requirements to compete and not only the former judges. Contrary to this, the first group of judges was elected only among former judges, without competition, so that the fear of lawyers was logical when they felt that this method of electing judges was in fact nothing but a purge of judges under the guise of the law.

Probably numerous candidates would appear in the secounr round of election of judges who would, if nothing else, be younger and in such "equal" competition, the inapt and in fact disobedient judges would be left out and the current authorities would be able to continue to talk about independent judiciary with a clear conscience.

The society of lawyers of Sarajevo has interpreted the matter simply as a warning to the current and the future judges that their place is on the margins of power and that they should not dream about independence of judiciary, and altogether it was qualified as the greatest blow against independence of judiciary in this space so far.

Selection of judges by measure of the authorities certainly is not a recipe which is used only in the Sarajevo canton. A similar model for elimination of undesirable judges was prepared in the canton of Tuzla and Podrinje, but for the time being they have decided bot to apply it.

Those who had conceived selective nomination of judges in the canton of Sarajevo, certainly have not counted on the fact that it would cause such a turmoil in the public especially the professional one.

The stance of President of Presidency of B&H, Alija Izetbegovic, who has stated his opinion in a recent appearance on state television that errors have occurred in election of new judges, but that favouritism was "not the matter of party affiliation, but of family ties".

    Except for the feeble demand of the opposition SDP for

annulment of the decision reached about nomination of new judges and for resignation of minister Zahiragic, the other political factors failed to even issue statements concerning this issue.

    It is after all insignificant whether political

aptness or family ties were decisive in the election of judges; in both cases the judicuiary was brought down to the role of mere service to individuals in power, while laws and the legal state were just a false front.

The essence of the problems will not be resolved by "promotion" of a few Croats, Serbs and others into cantonal judges in order to satisfy the ethnic requirements. Somebody's ethnic membership has nothing to do with that person's honesty, qualifications, personal courage and resistatnce to pressures and "requests" from offices of political power wielders.

The dilemma between "jurisprudence and justice" does not seem to be resolved yet in political top echlons. However attractive might using of the concept of "justice" seem as a universal excuse for everything done but also not done in conditions of growing social tensions, pushing the law to the margins, unavoidably traces the road either towards dictatorship or to general anarchy.

A solution seems to have been found in "tested" judges who would in the future, if and whenever needed, be capable of "stretching" the law and freely interpreting legal provisions, if it were for the sake of a "high causes" of course, or if it meant "justice" which did not quite fit into the jurisprudence.

In this way, a compromise would be found, that is both the politicians would be satisfied and the judges would be controlled. At the same time, the current authorities would not have to be too worried because of numerous provisions on protection of human or other human rights, which due to the dictate of the international community have been incorporated in all possible constitutions, on the level of the state, through that of the federation, to that of the cantons.

Freedom and independence are not given away like presents, they simply have to be won. This refers to everybody, but especially to judges whose independence is the foundation of a state ruled by law. The judges at this moment need the support of the public, of course, but even more of their colleagues.

    The wish to have the once won power treated as an

untouchable private property which can be claimed by absolutely nobody else but those in power seems to be inheritable in the Balkans. Regardless of the ideology which serves like a screen, and all the swearing by bell, book and candle to be in favour of a multiiparty system and the rule of law, if asked to choose between power and the legal state, all Balkan leaders would without a second thought choose power.

The citizens have but one trump card left - their votes in the elections. And until then, the ruling party will have to offer to the public some small fry, and maybe a few big fish, as scapegoats. If they got actual control of judiciary in exchange, this would be trade which certainly is profitable for the authorities, of course, since the opinion of the citizens is never taken into account anyway.

Drazen SIMIC