Constitution and Laws in B&H Federation Only on Paper

Constitution Melted into Thin Air

AIM Sarajevo, 31 January, 1998

Wishing to check the authenticity of the text, a high official of the Assembly of the B&H Federation, a few days ago, asked to see the original copy of the Constitution of the Federation. Let us be reminded that this is the 1994 Constitution, from the time when after signing of the Washington Agreement, the Bosniac-Croatian Federation was established. That Constitution was written by dictate of the international community. This official asked to see the Constitution, the clerks assisted him, turned the Assembly archive upside down, but did not manage to find it. It must have disappeared, they say, when the Assembly moved into new premises, as if it were some unimportant factory bulletin. The Constitution melted into thin air. And it was not out of mere curiosity that this legal expert who wished to remain anonymous, sought to see the fundamental legal document of the state. Far from it, he had profound and essential reasons for it. There is one Constitution, but it has two different contents. It might sound absurd, unbelievable and impossible, but unfortunately, it is true. From the original, English language, it was translated into Bosnian and Croatian. One would tend to say, a purely technical matter. But, when they saw the light of day, it turned out that according to their content, they were two different constitutions. The differences are not the result of linguistic details, but are found in the very essence, for instance, from the duties and responsibilities of the cantons to organization of the judiciary and the administration. This means that when they referred to the same Constitution, the Bosniac and the Croatian party, depending on individual cases, actually stated completely different interpretations. Nobody, not even the Constitutional Court of the Federation, has dared so far to do anything to resolve this Gordian knot. Maybe that is the reason why the original copy has disappeared, so that the naive can continue to be convinced that the translators are to blame for different versions. In the formal and the legal sense, it could also be said that the state, that is, the so-called Dayton Constitution, still has not come into force. It was adopted twenty seven months ago, but it is still waiting to be published in the official gazette. The same principle is valid for it too: three newspaper variants, three different interpretations. Jurisprudence has in this way been enriched by Bosnian & Herzegovinian nonsense.

When this is happening to the constitutions, one can just imagine what is happening with the laws. The procedure until they come into force is as follows. It is first necessary to have both Assembly chambers (the Chamber of Representatives and the Chamber of Nations) adopt a draft law with the same text, then they are sent to the cairmen of the chambers to be signed, then the government takes care of translation into Bosnian and Croatian language, which is followed by ratification and decree of the president of the Federation in order to finally come into force after publication in the official gazette and stating of the precise date when that will happen.

Time limits within which this is to be completed are not set. It so happens that, depending on the good or political will of the chairmen of the assembly chambers, adopted laws wait to be signed for months, the awkward procedure continues, so that only the first steps of a common legal system in the Federation have been taken. And even these have mostly been froced out by the Office of the High Representative of the international community. Petty-political and bureaucratic resistance to the beginning of operation of the system is occasinally coming from the Bosniac and occasionally from the Croatian side.

The latest example for this is the new law on abolishment of tariff concessions. Adopted unwillingly and under pressure exerted by the international community (because the veterans, but many others as well, were exempt from paying customs), it was supposed to come into force last October. They say that it has become operational just in the past few days instead, and in the meantime, the budget of the Federation was impoverished by millions of marks due just to tarrif-free import of several thousand used cars. To the question put by a deputy why this law is not coming into force, a high assembly official laconically answered: "Oh, come on, let the people profit some more". Relying in advance on the assumption that laws will not be respected, regulations are adopted about return of refugees, the right to housing and many others. It is impossible to build a state ruled by law with a heap of unfounded regulations and without the necessary political will and wish to replace voluntarism by lawfulness. And there is still plenty of voluntarism both on the territory of the Federation and the whole of B&H.

The Office of the High Representative seems to be regulating things more and more often and in more and more spheres. First the passports, then the more or less unique money, the flag, licence plates, the state coat-of-arms. It does not seem to bother the local political demagogues. They will lament about the protectorate, keep saying that they advocated other solutions, point out that the culprit is always on the other side. But they will also equally skilfully do everything they can not to implement what has been formally and legally adopted. The game with the international community will often lead to a stalemate position. They adopted what they had to, but life goes on as before. Co-chairman of the Council iof Ministers Neven Tomic talks about in an interview given to Vecernje novine: "The obstructors can gloat now thinking that Westendorp can pass whatever he pleases, but they will not implement it. All the parties here are still powerful enough not to implement what they do not wish to. In June last year we passed a set of laws for a quick beginning, and not a single one is implemented. Why? Because ones do not want the existing situation to change, others do not want the laws to be implemented because they do not accept what has been done because it was done under pressure. That is why the Office must have instruments to implement its decisions".

That is for the time being, obviously, the only way to out of the B&H jurisprudent nightmare. While waiting for new elections and new forces for the absolutely essential changes, even greater efficiency of the international community is needed. Without it, the disappearance of the Constitution which has melted into thin air, and its two different contents, and failure to implement the passed laws, lead to a conclusion that indeed there is system, as Shakespeare would say, in the fact that the system does not function.

Mladen PAUNOVIC

(AIM, Sarajevo)