Professor of constitutional law Siniša Karan stated that Željko Komšić, with his “civic narrative” about the Constitutional Court of Bosnia and Herzegovina (BiH) and its “specific competencies,” is attempting to introduce a new decision-making and operational method that would exclude the entity and ethnic decision-making model and emphasize a simple majority as sufficient for decision-making, which embodies a destructive political concept.
Commenting on Komšić’s address at the session of the Venice Commission, where he stated that BiH has a fragile democracy and that in such cases the Constitutional Court should be the ultimate judicial instance that, in addition to legal issues, should also protect democracy, Karan emphasized that it is essential to maintain peace and stability in BiH, which is possible only by respecting the Geneva-New York basic agreed principles, where the concept of constitutiveness is paramount, a principle, and a constitutional norm.
We are sharing Professor Karan’s column for SRNA in its entirety:
Komšić, the never-realized constitution-writer from the parallel universe of “civic BiH,” requested the adoption of a “small amendment to the draft Opinion of the Venice Commission.”
With his “civic narrative” about the Constitutional Court of BiH and its so-called “specific competencies,” Komšić is attempting to introduce a new decision-making and operational method that would exclude the territorial, i.e., entity and ethnic decision-making model, and emphasize a simple majority (of the total number of judges) as sufficient for decision-making.
This dangerous thesis, although presented as democratic by him, is actually the embodiment of a concept of domination politics, destabilization, dangerous dominance politics, and a destructive political approach.
Domination politics must understand that constitutiveness is a key, essential, generic, constitutional element as an overarching, general, and the highest principle and idea of the only possible link between the three peoples (holders of sovereignty), territorially defined in two entities.
In BiH, it is essential to maintain peace and stability, which is only possible by respecting the Geneva-New York basic agreed principles, where constitutiveness is paramount, a principle, and a constitutional norm, the framework of the possible – opposed to the principle of domination as the framework of the impossible.
Therefore, the structure of state power is only possible through the principles of political compromise achieved by the peace agreement, establishing a balance mechanism, as well as preventing the dominance of any nation in the decision-making process.
Komšić’s “small” thinking aims for the highly autonomous federal unit to disappear, as well as the protection mechanisms of Republika Srpska and the Serbian people, and to transform BiH into a civic, unitary, and folklorically multicultural state, without constitutiveness and federal ethnic-territorial representation.
In the long term, Republika Srpska would no longer be responsible for the election of Constitutional Court judges, but the entire BiH would be a single electoral unit, and this would be a step towards returning to a unitary, majority Bosniak state, one man, one vote.
I remind you that the Venice Commission correctly stated the following: “The division of positions in state bodies among the constituent peoples was a central element of the Dayton Peace Agreement, which enabled the achievement of peace in BiH. In such a context, it would be difficult to deny legitimacy to norms that might be problematic from the perspective of non-discrimination, but necessary to achieve peace and stability, and prevent further loss of human lives.”
Therefore, this “small amendment” is a significant and direct attack on the Dayton Agreement, as its content is contrary to the very essence of a multiethnic plural society, but its implementation is unsustainable, dangerous, politically, sociologically, and overall socially impossible, socially unacceptable, and unenforceable.
The Dayton Peace Agreement constituted BiH as consisting of two entities and three constituent peoples – Serbs, Bosniaks, and Croats, while the rights of all others must be respected and protected, ensuring that the rights of any of the three constituent peoples are not violated in the system of representation in institutions.
Any decision or change that would disrupt the balance between the three peoples would be dangerous for BiH itself, as BiH is not mature enough to dismantle the Dayton Peace Agreement, which was achieved through lengthy and persistent negotiations. There is no ideally best form of internal state organization, state structure of BiH, but there is a real social foundation embodied in the Dayton Constitution, which allows none of the constituent peoples to live in subjugation while protecting the human rights of every individual.
Consociational democracy, balance, parity, and consensus, with the absence of any dominance or superiority of the federal level over federal units (entities) or vice versa, through the application of constitutional division of competencies, is the only sustainable and enforceable concept of functioning in BiH, as opposed to the destructive ideas and negation of the Dayton balance proposed by Komšić.
Source: RTRS
