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Branko Morait (SNSD), member of Constitutional Commission of the parliament of Srpska

No Justification for Symmetry

These are two constitutions with different origin and form, since the internal organization of the Federation and Srpska is different. The decision of the Constitutional Court of Bosnia-Hercegovina does not imply that entity constitutions have to be modified in the same way

by Sasa BIZIC

Reporter, Banja Luka, Srpska, B-H, May 9, 2001

Besides strictly legal issues, the Commission for Constitutional Matters of the Parliament of Srpska had to deal with linguistic analyses. A member of the Party of Independent Social Democrats (SNSD) and a representative of others in the commission, professor of the Law School of the Banja Luka University Branko Morait, has very little tolerance for debates of this sort and states that the existence of three languages that do not require translation for mutual understanding was one of few reasons for inter-ethnic debate at the meetings of people who did not resort to "vital interest" even when the Apartment Privatization Law was concerned. "I think that the implementation of the decision of the Constitutional Court of Bosnia-Hercegovina will nevertheless bring about a certain change in the legislative, executive and judicial authorities, and perhaps in other public services. The Venice Commission had different proposals. They requested significantly more profound changes of the constitution than required by the decision of the Constitutional Court, so that we reached compromise to nevertheless go for more narrowly defined modifications of the constitution with the acknowledgement that there may be reasons for a possibly more significant changes in the future. However, this is a specific commission for the implementation of the Constitutional Court decision. It does not have the mandate to rewrite the constitution according to its liking."

REPORTER: Would a new formulation regarding the constituent character of nations provide legal grounds for possible future initiatives for a change of the name of the Republic of Srpska?

MORAIT: As far as I know there haven't been any demands to that effect.

Not at the moment, but what about the future demands?

These are proposals for various amendments to the constitution, and they have to come from instances authorized to make such proposals, so that that is not important right now. I think that such issues will not be addressed by the commission at this point.

Could free interpretations of the term "vital interest" be a cause of future manipulation?

There were two proposed solutions. On the one hand the reasoning went that a constituent nation is the same as a political nation. That is the use of nation for political purposes. The other concept won in the end. According to that concept the vital interest concept has to do with the protection of identity - cultural, religious, linguistic... These are the components of vital interests that should be protected, so that the constitutional commission cannot be abused to block the work of institutions defined by the constitution.

Will the Republic of Srpska get a bicameral parliament with the Senate of Srpska?

That option did not get a lot of support in the work of the Constitutional Commission. I think that our work mostly moved within the framework of the formation of a commission that would take care of the constituent character of nations, equality, prevent discrimination and preserve these principles. A new concept of the Constitutional Court of the Republic of Srpska was the preferred solution. In this new concept the Constitutional Court of Srpska will have a separate council that will quickly react to demands to establish whether vital interests of any of the constituent nations were harmed by a law.

Will the members of that council at the same time be the members of the Constitutional Court and will there be any changes in the ethnic composition of the Constitutional Court?

I think that that is also one of compromises that were made between the idea that the Constitutional Court should have equal number of members from different ethnic groups, that constituent nations should have two members each and the others one, and the proposal that was finally adopted, according to which the already existing Constitutional Court organization remains, while it will be added new members who will reflect constituent character of all three nations in the Republic of Srpska.

Does the decision of the Constitutional Court of Bosnia-Hercegovina about the constituent character of nations leave space for different solutions in the two entities?

These are two constitutions with different origin and form, since the internal organization of the Federation and Srpska is different. The decision of the Constitutional Court of Bosnia-Hercegovina does not imply that entity constitutions have to be modified in the same way. The insistence on identical changes in both constitutions comes from fear that there will be some differences. However, those differences are unimportant if the decision is implemented the way it was made and according to its letter.

Translated on August 2, 2001
SRPSKA