by Zoran ZUZA
However, the split vote decisions in the BH Constitutional Court have different connotations, since the political views of judges in the highest judicial institution in the country is closely related to their ethnic background. There is no other way to explain that as many as five times so far we've had the situation in which the votes in the BH Constitutional Court went five against four, and every time two Bosniak judges, together with votes of foreign judges, outvoted Serb and Croat judges.
And ethnically based votes in BH unpleasantly remind of the situation in the pre-war Parliament and the causes of the war in this country!
Alija Izetbegovic peacefully retired (as an official, but not as a politician) after the decision of the BH Constitutional Court regarding the constituent character of all three nations everywhere in BH, made following the mold "five against four". Thanks to the same mold, after a debate demanded by the member of the BH Presidency Ante Jelavic, the BH Constitutional Court proclaimed itself incompetent to decide on the constitutional character of the decisions of the Temporary Electoral Commission of the OSCE about the manner in which the Chambers of Nations in the Federation and State parliaments are supposed to be filled. Exactly such an outcome was "predicted" before the beginning of the hearing by the OSCE mission chief, Robert Barry.
However, one must wonder based on which principle the BH Constitutional Court held at the same session "general hearing" about the State Border Service Law, which was imposed by the High Representative in January 2000. Just like the OSCE, the High Representative has a specific mandate within the Dayton Agreement. The score was "five against four" also after the hearing on the constitutional character of the federation Tenancy law, which specifies that returnees must spend two years in an apartment before they are allowed to buy it.
Corrector of political structures: Former president of the BH Constitutional Court Kasim Begic in a conversation with Reporter rejected any possibility that the decisions of judges have anything to do with their ethnicity of entity affiliation and claims that judges make decisions based on their conscience and knowledge. "It cannot be said that one nation is voting against others. That is not mentioned in the Constitution, nor in the Court rules," warns Begic. However, he admits that he is not pleased when he has to view the recent decisions of the court through the ethnicity of the judges and their entity affiliation.
Claims of certain politicians that the BH Constitutional Court is making political rather than legal decisions are dismissed by Begic as ridiculous. "Mr. Mirko Banjac initiated three cases in front of the Constitutional Court. He won one and lost two. Then he says that the Constitutional Court is a political institution. These are political matters and I do not care about them. Regarding the decision about the constituent character of nations, the hearing went on for two and a half years. No one questioned whether the Court had the right to make a decision about that, and when the decision was made, only then it was claimed that the Court had become a law giver, it was said that the decision was political... Some people have really short memory."
However, judge Begic's view that the Constitutional Court at this point should assist political structures and correct their decisions, reveals that he is far from removed from politics. "If political structures, parliaments, are not capable, and obviously they are not, to follow their obligations from the General Peace Agreement, then someone must do that. That is the BH Constitutional Court and, fortunately for us, the High Representative. Because, if you read the BH Constitution, you'll find that the Constitutional Court has the authority to resolve the disputes that block the work of the BH Parliament, which has until now been done by the High Representative," stresses judge Begic, who himself spent full five years in various parliaments.
Resignations as final solution: Unlike Begic, judge Vitomir Popovic claims that judges of the Constitutional Court represent their nations in that institution since, as he says, it could not happen that instead of him and Snjezana Savic a Bosniak or a Croat be elected to the Constitutional Court. Popovic warns that split-vote decisions based on the ethnicity of the judges have become practice recently and that he and other judges are not happy about that. To the Reporter's question whether he and Ms. Savic have considered the possibility of withdrawing from the Constitutional Court as judge Mirko Arsovic did before the hearing regarding the constituent character of nations, Popovic emphasizes that has not yet been discussed, but he does not exclude such a decision if split-vote decisions based on ethnicity continue. "In practice, in the court with judges representing three constituent peoples, the votes of judges from one people simply outweigh the votes of the judges representing the other two [with support of foreign judges] in the matters that are of vital interest for all nations in Bosnia-Hercegovina. Thereby the Constitutional Court becomes an unnecessary and senseless institution," emphasizes judge Popovic.
He especially mentioned the decision of the Court about the disputed article of the Federation Tenancy Law, which, based on his judicial views, he assessed as discriminatory. "Simply, it is impossible to talk about equal rights of nations and citizens if all of them do not have identical rights when buying apartments. I think that the European convention that, true, recognizes certain limitations in cases of the so-called public interest, could not be used in this specific case. Tenancy rights are a form of ownership rights or, better said sui generis rights, which is confirmed by the practice of the Human Rights Court, which follows Annex 6 of the Dayton Peace Agreement. If that is observed as ownership rights, then one cannot impose limits on how and when someone will use that right as that brings that person to unequal position with other citizens," warned judge Popovic explaining why he wrote a separate opinion disagreeing with the decision of the majority of judges of the Constitutional Court.
Consequences: If we try to analyze the consequences of the decisions of the Constitutional Court made by split-vote decisions based on the ethnicity of the judges, we are forced to conclude that, instead of providing a final solution for concerned disputes, they opened new dilemmas that could in the near future be the object of new disputes, either legal or political. The trouble is, among other, that the decisions of the Constitutional Court are not supposed to be questioned, discussed, or commented on; they are simply supposed to be implemented.
The application of the decision about the constituent character of all three nations, after numerous political calculations and a lot of mulling, in practice was initiated by the decision of the High Representative to establish in entity Parliaments constitutional commissions for the protection of the rights of constituent and other nations with sixteen members. These commissions, viewed by many as a way to establish second chambers of the Parliaments, are supposed to protect representatives of nations from any shape of discrimination, as they can bring into question any law or decision of the government that does not suit the interests of any nation in BH. But if we observe this matter through the fact that representatives of different nations cannot agree about anything in the BH Constitutional Court, let alone enact together a law in the state parliament, one can only hope that the work of the entity parliaments and governments will not be totally obstructed and blocked because of "higher national interests". This would be especially unfortunate in the Republic of Srpska Parliament, which after three years finally has a stable majority. Probably because of possible blockade of the work of Parliaments, the High Representative left to the commissions only three days to try to reach an agreement regarding disputed document, after which, if the commission members do not do it themselves, the High Representative would make the decision himself. This at the same time means that the High Representative, if the commissions are active (which one should not doubt), but unprepared to resolve disputes on their own (which one could bet on), will have extremely important influence on all the documents passing through legal and executive authorities in the entities.
The decision of the BH Constitutional Court to proclaim itself incompetent in the case regarding the constitutional character of the decision of the OSCE Temporary Election Commission specifying the method for filling the places in the House of Nations in the Federation Parliament and the State Parliament indicates that the theory about constituent character and equality of nations also has its limits. In that way the HDZ, although it won in the elections, was stripped of the right to exclusive representation of Bosnian Croats and, rumors has it, it could also be stripped of several of its leaders if within a week they do not call constituting sessions of assemblies in two cantons in which that party won overwhelming majority. To his "conspiracy theory" against the Croatian people in BH Jelavic (the HDZ equals Bosnian Croats) on Wednesday added catastrophic outcome of the vote against his favorite, Martin Raguz, in the Lower House of the BH Parliament (received only 6 votes [out of 22 necessary]), so that the HDZ leader, it is expected, could fall back on the achievements of the Croatian National Assembly (HNS) and the November referendum. That would undoubtedly bring him in front of unavoidable Petritsch and push the whole BH, because of the announced moves by the High Representative, even deeper in the clutches of the international protectorate.
Also to be considered are the consequences of the decision of the BH Constitutional Court according to which those lucky individuals who manage to get hold of their apartment will be allowed to buy it only after spending two years in it. If, by some miracle we manage to find the answer to the question how the returnees are supposed to live in these apartments and pay the rent and other expenses, we are to expect that the Apartment Privatization Law in the Republic of Srpska could get a similar article. In that case the constituent returnees will be equal in discrimination, which would "without doubt contribute to their faster and self-supporting return".
Prof. Dr. Vitomir Popovic, Professor at the Banja Luka University Law School. Expert for international trade law.
Prof. Dr. Kasim Begic, Professor of the Sarajevo University Law School.
Azra Omeragic, during the war she was a judge of the Higher Court in Sarajevo, and in 1995 was elected for the president of the same court.
Mirko Zovko, until the war worked as a judge of municipal courts and the District Court in Sarajevo, and a lawyer.
Dr. Zvonko Miljko, assistant professor at the Mostar University Law School.
Prof. Dr. Marko Joseph, Austria, professor at the Graz University.
Prof. Dr. Luis Favoreu, France, Dean of the Marseilles University. Expert for electoral law and electoral systems.
Dr. Hans Danelius, Sweden, active in judicial matters and diplomacy.
Vitomir Popovic emphasizes that he does not fully understand how the BH Constitutional Court is financed. "As far as I know, all judges receive salaries from the same budget. Both entities make payment to that budget. However, it is not a secret that the international community made some donations for the beginning of the work and functioning of the Court."