Group of Five Led by Intuition

On the one hand, they state that entities are not states. On the other hand, they establish the constituent character of nations, which can only exist in a state. In this manner they indirectly recognize the statehood of the entities

interview by Sasa BIZIC

Reporter, Banja Luka, Srpska, B-H, July 26, 2000

The usual reaction of the Serb side to unfavorable political decisions in Bosnia-Hercegovina (BH) has three phases: euphoric rejection, disoriented coming to terms with the indifference of the international community regarding the arguments offered by the Serb side and resigned and unenthusiastic implementation of the work they are forced to do. The apathy has reached such a degree that the leadership of the Republic of Srpska (RS), after the decision of the Constitutional Court of BH about the constituent character of all three nations in both entities, even skipped the first two phases. Petar Kunic, a professor at the Law School in Banja Luka, attended the sessions of the Court as an expert representing the RS. He points out that it is wrong to reach decision in the Court by a simple majority vote, but reveals additional illogical elements in the contest between politics and law, expressing his dissatisfaction with the predictable result: "In strictly legal terms, the decision of the BH Constitutional Court is final and must be implemented. The parliament of the RS is the body that is supposed to implement that decision by modifying the RS Constitution, if the Parliament accepts that decision. The Constitutional Court does not say: the RS Constitution must be modified in this way or that, but merely states that an article from the RS Constitution violated the BH Constitution. After a certain time period, the article deemed to be unconstitutional becomes void. The RS Parliament decides on the modifications of the contested article of the Constitution, and it can only do that after receiving the decision of the BH Court and its justification. Only after that we can assess the consequences of the changes in the RS Constitution. In this case, the Court was not independent. Unfortunately, foreign judges were under influence of politics in this case. The atmosphere during the hearings is the best example of that. Our representative, the representative of the RS, and our judges were very active, as well as the Croat judges, but the domination of the other side was absolute and obvious. The Bosniak judges and foreign judges offered no arguments. That is why the decision is the way it is. There were attempts to establish facts, but there were no facts and no legal foundation for the decision in the BH Constitution, so that it was finally based on intuition. Certain foreign judges would even say: 'If this decision is not made certain things would happen'. Therefore they abandoned strict interpretation of legal norms and instead used subjective assessment of a certain situation."

REPORTER: Could the High Representative impose his own constitutional changes if he is dissatisfied with the "modifications" that are supposed to be formulated by a two-thirds majority in the RS Parliament?

KUNIC: The High Representative does not have the authority to get mixed up in legal and constitutional matters. His basic role is to serve as a mediator between sides and to accelerate making of decisions in those cases where both sides cannot achieve balance in their interests. However, as we are getting further from the signing of the Dayton Agreement, the Office of the High Representative for BH is being transformed from a mediator to a ruler of BH. They are developing a huge administration, although the public is not aware of that. Very little is written about that, especially in the RS. Let me go back to the original situation: why was the situation regarding the making of this decision unequal? On the one side, political tensions in connection with this issue were pushed to the boiling point. On the other side the attention and media coverage in the RS was very low. The state television failed to show any interest in the issue. Why? Because it is under international control. That indicates that a part of the international community desired this solution.

How much time is needed to implement the decision of the Constitutional Court? Will this decision influence the proposed Permanent Election Law?

The Bosniak side believes that the decision implies radical consequences for the Permanent Election Law, which is unacceptable from the point of the view of the BH Constitution. They demand a second house of the Parliament in the RS. The Constitutional Court cannot determine whether a second house of the parliament will exist in the RS. That is a purely political matter. That depends on the will of the people, members in the parliament... The proof that the decision of the Constitutional Court is contradictory is that on the one hand it asserts that entities are not states, while on the other hand it establishes constituent character of nations in entities. Only a state can have constituent nations. Therefore, the decision indirectly recognizes the statehood of the entities while at the same time claiming that they are not states.

Izetbegovic also contested in front of the Constitutional Court the participation of the president of the RS in the command of the armed forces of the RS. Is the jurisdiction of the civilian command of the RS Army split between the president of the RS and the Serb member of the BH Presidency, or does it belong to one of them exclusively?

There is a division of jurisdiction. The BH Constitution states that the BH Presidency is in charge of the civilian command. It makes sense that a member of the Presidency from a certain entity should do that. Of course, in case of a state of emergency in the RS, the President of the RS, based on the constitution, becomes the commander of the armed forces. However, you see that the goal is to not only unify the command through the Permanent Military Committee, but to also unify the armies. Article 5 of the BH Constitution clearly says that under no circumstances armies can cross the border between the entities without the approval of the BH Presidency and the government of the other entity.

What is problematic with the parts of the RS Constitution about the material assistance of the state for the Serb Orthodox Church? Recently in Greece protests were organized against, for our circumstances, fairly benign government's decision to remove religious affiliation from personal identification cards. However, no one brought into question full membership of Greece in various western integrations, such as the European Union and NATO.

Some things are allowed in Greece, but not in the RS. Regarding such questions, the West has different standards. The complaint is that the RS has the duty to finance other religious communities as well. Regarding that, the solution should really be proposed by the religious communities. It is absolutely clear that we should insist on the equal position of religious communities within entities and BH.

At a recently held round table discussion, Slavko Santic from Circle 99 stated that the decision of the Constitutional Court would result in the abolishment of the Republic of Srpska. How realistic is that assertion?

Of course, their true intentions are to destroy the RS. The RS cannot be destroyed as long as the Serb people has a consciousness. That will not be decided by Santic, Pejanovic and their gang but by the people of the RS. I think that those non-governmental organizations in the Federation receive significant financial support from certain foreign circles. The ideas of the Forum Bosnia and Circle 99 are taken over by the International Crisis Group (ICG) in Sarajevo, led by James Lyon. The ICG packages these proposals for international factors and it is extremely biased. Everything that group has done so far was harmful for the interests of the Serb people. The ICG is a non-governmental American organization which is always full of criticism when Serbs are in question. It has long time ago sided with the Bosniaks. I think that the ICG prepares the political platform for the OHR, since I've noticed that many of their proposals originate in the Forum Bosnia or Circle 99, then are passed to the ICG which in turn packages and passes them on to the OHR. Currently the experts from the OHR are reacting and accepting that concept. The ultimate goal of the ICG is the disappearance of the RS and centralization of BH. Earlier they tried to disguise their goals and worked on that indirectly, but now they are doing that openly. It is high time that the public, political and intellectual leadership of the RS realize that, take the situation seriously and take steps to prevent further dismantling of the Dayton Agreement at the expense of the Serb people.

What steps in particular?

They should refuse to accept certain things. I think that the best example is the recent meeting of the political and military leadership of the RS, at which an agreement was reached to reject the unification of armies in BH. No one can ever force a people to do something it is not willing to do. At the moment various international representatives like to claim that people accept certain concepts, while leadership rejects them. It they really believe that, why don't they call a referendum on some vital issues in the RS? Some articles of the Constitution are simply violated using the argument of force. An injustice is done to a nation, and we know that an injustice is always a source of future conflict. Relations in BH must be balanced. As soon as that balance is disturbed, a potential source for future conflict is developed. The present developments are going in exactly that direction.

Discrimination Ejected from Entity Constitutions, President of the BH Constitutional Court, Dr. Begic, announced decisions about constituent character of all three nations, Oslobodjenje, Federation Bosnia-Hercegovina, B-H, July 4, 2000

Translated on October 25, 2000