Constitutional law professor Sinisa Karan stated that the 32 years of the Constitution of Republika Srpska represent the legal expression of the state, social, political, and overall legal order of the Republic, which was created as an expression of the people’s will and the universal right of the constituent people to their own state.
“The existence of a state is a condition for the adoption of a constitution; on the other hand, the existence of a constitution is proof that a state exists. Only a state can adopt a constitution; the constitution is an act of the state, a condition without which the state and its state organization cannot exist,” Karan emphasized.
According to him, the Constitution of the Serb Republic of BiH /later Republika Srpska/, which was adopted by the Assembly of the Serb people in BiH on February 28, 1992, establishes and confirms Republika Srpska as a state of the Serb people where all citizens are equal and free.
“The process of constituting Republika Srpska was completed by the fall of 1992. A Republic was established as a state-forming unit of the Serb people and all its citizens,” Karan told Srna.
Although the processes of constitution were parallel to resolving the status of BiH, he stressed, one must not ignore the fact that Republika Srpska was constituted in 1992, while BiH only in 1995.
“I believe that these facts greatly distress many local interpreters and lovers of ‘BH statehood’, but they are historical and well-known,” Karan emphasized.
According to his words, from the constitutional legal aspect and the classic division of primary-secondary, the Constitution of Republika Srpska is undoubtedly a people’s constitution adopted in the procedure of representative democracy; it is a rigid constitution, implying a multi-phase and very difficult and complex change, it is written and codified, and of medium length, which is characteristic of the length of constitutions in our region. Also, over its 30 years, the Constitution of Republika Srpska has undergone 17 changes through 127 constitutional amendments, of which the High Representative intervened five times with 37 amendments.
REPUBLICA SRPSKA WAS CREATED BOTH FACTUALLY AND NORMATIVELY
Firstly, Karan emphasized, Republika Srpska was created both factually and normatively, i.e., de facto and de jure.
“It was created factually because it had territory, population, and organized authority. Normatively, the process of constituting and adopting constitutional acts began in the fall of 1991. Significant constitutive/constitutional acts were adopted as ‘precursors to the adoption of the constitution, as well as some later ones that fully rounded out the constitutionality of Republika Srpska,'” Karan reminded.
According to his words, the Constitution determined that the organization of the Republic is based on: guaranteeing and protecting human freedoms and rights in accordance with international standards, ensuring national equality, social justice, the rule of law, market economy, multi-party system, parliamentary democracy, and the separation of powers, free elections, local self-government, and the protection of the rights of ethnic groups and other minorities.
The state power in the Republic is organized, he mentioned, on the principle of separation of powers so that the constitutive and legislative power is exercised by the National Assembly, executive power is carried out by the Government, and judicial power belongs to the courts. The President of the Republic represents the Republic, and the Constitutional Court ensures the protection and control of constitutionality and legality.
Karan reminded that local government – municipalities and cities – operated at full capacity, hence, the Republic assumed and secured the functions of a state. The Republic had its own army, police, courts, prosecutions, state authorities, National Assembly, Government, President of the Republic, Constitutional Court, and there was also its own currency, organized tax, budgetary, and overall fiscal and monetary system.
Karan pointed out that de jure the Republic was not internationally recognized, but de facto it was because it was a partner in international negotiations.
“Thus, Republika Srpska was actually a state with full capacity during the period of 1992–1995. However, the further state-forming – legal status of Republika Srpska depended on the final resolution of the BiH issue. In such circumstances, solutions for the state organization of BiH that would satisfy all three of its constituent peoples were sought,” the constitutional law professor emphasized.
BY DAYTON, A CONFEDERAL-FEDERAL COMPLEX STATE COMMUNITY OF BiH ESTABLISHED
Secondly, Professor Karan reminded, on the political map of BiH until the final solution, there were two state entities, the Federation of Bosnia and Herzegovina (FBiH) and Republika Srpska. The last, fifth attempt (following the Cutileiro Plan, Vance-Owen, Owen-Stoltenberg, Contact Group) by the international community to find an acceptable overall, especially territorial, solution for everyone in BiH, was successful.
He stated that on September 8, 1995, in Geneva, a document on the constitutional principles for the union of BiH was adopted, officially recognizing Republika Srpska with 49% of the territory of BiH and the FBiH with 51% of the territory of BiH, as two entities that constitute BiH, and the base determinant of those principles relates to the continuation of each entity in accordance with its current/existing constitution.
Then, he added, on September 26, 1995, in New York, the Geneva document was further elaborated/completed. From November 1 to 21, 1995, in Dayton, Ohio, USA, final negotiations were held on ending the war, on peace, on the division of BiH, and on the constitutional arrangement. All documents of the peace agreement that were agreed upon/initialled in Dayton were signed on December 14, 1995, in Paris.
“The Dayton-Paris Peace Agreement achieved a significant compromise, stopped the war, and established a new confederal-federal, complex state community of BiH, recognizing Republika Srpska and the FBiH as state-forming entities with full internal sovereignty and limited external sovereignty,” Karan highlighted.
TO REPUBLIKA SRPSKA BELONG ALL STATE FUNCTIONS EXCEPT THOSE EXPRESSLY TRANSFERRED TO ITS INSTITUTIONS BY THE CONSTITUTION OF BiH
Thirdly, Karan pointed out that today Republika Srpska has a constitutional order constituted by the Constitution of Republika Srpska, in accordance with the Constitution of BiH.
“The constitutional order of Republika Srpska is made up of a system of bodies that independently carry out their constitutive, legislative, executive, and judicial functions. It autonomously enacts laws (legislative autonomy), exercises judicial power, i.e., applies laws through its own courts (judicial autonomy), makes decisions, and executes laws and other regulations through the executive power (executive autonomy). It has original public authority, i.e., the authority to make binding decisions and to execute them, without being authorized to do so by a third party. It freely organizes its state structure and legal order,” Karan stated.
It is important to emphasize, he added, that Republika Srpska possesses all state functions and competencies except those that are expressly transferred to its institutions by the Constitution of Bosnia and Herzegovina.
Karan highlighted that Republika Srpska is part of BiH and represents one of the two equal entities within BiH, adding that all peoples (Serbs, Bosniaks, and Croats as constituent peoples, other citizens) participate equally and without discrimination in the exercise of power in Republika Srpska, which as a federal unit has its own territory – unified, indivisible, and inalienable.
The change of the inter-entity boundary line between Republika Srpska and the FBiH can only be carried out by mutual agreement, which can be confirmed through a referendum in the Republic, he noted.
Republika Srpska may, in accordance with the Constitution of BiH, establish special parallel relations with neighboring states, and can also enter into agreements with states and international organizations. The exercise of power in Republika Srpska is exempt from the control of BiH bodies, except in cases provided for by the Constitution, Karan said.
A REAL NEED FOR A NEW CONSTITUTION OF REPUBLIKA SRPSKA THAT WOULD AFFIRM THE ORIGINAL PRINCIPLES
Given all the aforementioned reasons of constitutional law nature, normative and legislative technical nature, overall historical, social, and political circumstances, as a product of 32 years of attacks on the Constitution of Republika Srpska, Professor Karan indicated that it is realistic to expect and there is a real need for change through the adoption of a new constitution of Republika Srpska, which would fully affirm the original principles of the Constitution from February 28, 1992, and the Geneva and New York principles, which fundamentally are in accordance with the Constitution of the newly created BiH, agreed upon by Republika Srpska, and nothing beyond or below that.
“Everything above the Geneva and New York principles does not represent conformity with BiH but actually a process of negation of the Constitution of Republika Srpska. Therefore, the Geneva and New York principles were transformed into the Constitution of BiH. The Constitution of BiH /except for Amendment One for the Brcko District/ was not formally made, and it essentially formally represents the elaborated Geneva and New York principles,” Karan emphasized.
For years, he mentioned, attempts have been made to change and create a new constitution, but actually, the new constitution is the old constitution, because it only exists as such.
“To put it simply, the Constitution of February 28 nullifies all their 29-year work on dismantling. Thus, 29 years of dismantling by high representatives, the Constitutional Court, and in other ways the Constitution of BiH/Geneva and New York principles, from a constitutional-legal aspect, we will consider as if they never happened! Their efforts are in vain because all their work is unconstitutional, lacks a constitutional basis, and thereby from a constitutional-legal aspect does not exist,” Karan declared.
Source: RTRS
