SHAKY FOUNDATIONS OF THE LEGAL STATE

Operation of the Constitutional Court of B&H

AIM Sarajevo, 17 November, 1997

President of the Croat Party of Right, Dobrosav Paraga, belongs among those politicians who almost masochistically like to fight battles they cannot win. He recently submitted an appeal to the Constitutional Court of B&H demanding from this institution to nullify the Dayton accords as a document contrary to the Constitution. The Forum of Citizens in Exile joined him in the appeal. And although the outcome of this appeal is known in advance, and Paraga's act can cause nothing but derision of Milosevic, Tudjman and Izetbegovic (and nothing to say about the Americans as true creators of the Dayton accords), the Court will have to discuss the appeal and reach a decision about it. For it, this will probably be a half comical episode in the global jurisprudence nightmare B&H is in. They will have much more work to do in order to assess the other two legal documents - the law on abandoned housing units and those bought by the members of the former Yugoslav people's army (JNA). Ownership of these housing units was proclaimed null and void, which is undoubtedly in collision with the international regulations on private property. The road to return of these housing units regardless of the decision of the Constitutional Court and great pressure exerted by the international community will continue to be tedious and long. But, the Constitutional Court will have to play its part.

In a day or two, more precisely on 21 November, it will be exactly two years since the Dayton accords were signed. The total effects of implementation during these two years is more than humble. The Constitutional Court of B&H is no exception. Because, although a whole chapter of the Dayton accords is devoted to it and although it is attributed an exceptionally high place in creation of the legal system and therefrom the legal state, in every day practice this influence could not have been felt so far. Indeed, full seventeen months have passed since Dayton before, on 23 May this year, the Constritutional Court was finally constituted. It is constituted of four members of the Federation (two from the Bosniac and two from the Croat nation) elected by the Chamber of Representatives of the Federation, two elected by the assembly of Republica Srpska and three foreigners chosen by the president of the European Court for Human Rights, who are respectable lawyers of high moral qualities from Austria, Sweden and France. Only the president Mirko Zovko and his deputy Ismet Dautbasic are in Sarajevo, at their posts in the Court, while the others can be said to be travelling members of this court. Only the president and his deputy are for the time being on the paysheet, while salaries for the others are not even anticipated in the budget. It is also interesting that the president of the Constitutional Court Mirko Zovko is not a member of the Croat Democratic Community (HDZ) which is certainly a specific indicator of the true treatment of this post. The national parties obviously wish the Constiitutional Court to be nothing but a decoration of the legal and political system, and not a judge to all the laws.

"Despite everything", says the president of the Court Mirko Zovko", "the atmosphere for work is favourable and extremely cooperative. It turned out that representatives of all three nations in cooperation with the foreigners can work as a united team. Professional knowledge is important here, and not ethnic origin. Out of the twelve cases the Constitutional Court of B&H has heard so far, in eleven cases the decision was reached unanimously".

However satisfied with the atmosphere in the operation of the court Mirko Zovko may be, he does not hide disappointment concerning the attitude of the authorities. He illustrates this with numerous examples - laws are written and prepared in national party groups where the stress is put on ethnic partial interests, in their petty politicking often referring to the Constitutional Court but actually more often skirting it and pushing it to the margins. Decision making still takes place in narrow party leaderships, and everything else is nothing but a democratic screen.

It is a fact that in this way it is impossible to develop a legal system and a state ruled by law. And this is what all the citizens in B&H lack the most: from fundamental personal security, the right to personal property, freedom of movement, return of refugees, return of unlawfully siezed property. It is also a fact that the previous Constitutional Court of the Republic of Bosnia & Herzegovina accepted its second-rate position and was just a hanger-on and propaganda agitator of the current authorities in Sarajevo, often just a calm observer of unlawfulness in many spheres of life. The political leadership would certainly like this trend to continue with the newly established court.

Nevertheless, Mirko Zovko announces a shift in the practice: "Within limits of my authorization, I will be persistent in establishing the democratic legal system, taking primarily care about interests of protection of civil rights and freedoms of our citizens. I will be persistent in acquiring for the Constitutional Court the status and the role warranted by the Dayton accords".

It is easy to draw a conclusion from these words of his. The Constitutional Court of B&H first must fight for its own position in order to be able to carry out its job. The present factual power held by the narrow circle of national power wielders should be given back to the institutions of the system and only after that begin the tedious process of construction of the legal state. The next session of the Constitutional Court when the law on housing and Paraga's appeal will be discusses will show to what extent this institution is on the right course.

The shaky foundations of the legal state of B&H should finally be reinforced, and the Constitutional Court can surely contribute to it more than before.

Mladen PAUNOVIC

(AIM, Sarajevo)