The European Court of Human Rights in Strasbourg, as well as the Constitutional Court, the Court, and the Prosecutor’s Office of BiH, are the largest factors destabilizing BiH, committing a historic mistake by undermining the constitutional system of BiH, pointed out constitutional law professor Siniša Karan.
Reacting to the opinion of the Sarajevo Association of Independent Intellectuals “Circle 99,” which rejects the alleged attempts by BiH agents before the European Court of Human Rights to include and link ethnic affiliation with active voting rights in the “Kovačević” case, professor Karan emphasized that the choice between implementing and not implementing these rulings is a choice between preserving the Dayton construction of constitutional peace and its destruction.
In a column for the Republic of Srpska News Agency, Karan highlighted that the rulings of the European Court of Human Rights are nothing but a fraud against the Republic of Srpska, serving a continuous policy of attacks on it, aiming to create a unitary “citizens’ BiH” using “non-discrimination democracy” through court rulings in the process of unitarization and majoritization.
Here is Professor Karan’s column in full:
IMPLEMENTATION OF RULINGS THROUGH CONSTITUTIONAL AMENDMENTS IS A NEGATION OF DAYTON
Implementing these rulings through constitutional amendments would be a negation of the Dayton Peace Agreement, particularly the Dayton Constitution. In other words: these rulings aim to change the form of state governance contrary to the social and historical conditions that led to the formation of such a complex, multi-ethnic federal state, ultimately eliminating all federal elements and protections of ethno-territorial characteristics of federal BiH towards unitarization and unitarism.
The loud advocacy of political Sarajevo that BiH must amend its Constitution due to the implementation of the European Court of Human Rights rulings “Sejdić – Finci,” “Zornić,” “Pilav,” “Pudarić,” “Kovačević,” and enter into dismantling the Dayton Peace Agreement to build a new (anti-Dayton) political system, is another clear indication that the Strasbourg Court’s rulings are guided by Bosniak policies and their desire to dominate BiH.
Contrary to previous rulings of a similar nature, where the Court rightly recognized the political realities and burdens of countries that formally violated the provisions of the European Convention, but noted that social circumstances were not yet ripe for implementation, they did not consider this in the rulings for BiH, thereby leading BiH into an even greater crisis.
It is particularly interesting that none of the “advocates” for a sovereign and democratic BiH, rule of law, and legal state, especially constitutionality and legality, insisted on constitutional changes when it was a question of transferring constitutionally positioned competencies from the entities to the level of federal institutions: the army, police and intelligence structures, the Administration for Indirect Taxation, courts, prosecutors, and many other exclusively entity competencies.
Namely, these rulings determine that BiH discriminated against its citizen based on national affiliation and residence in the context of candidacy in general elections for members of the BiH Presidency and delegates in the House of Peoples of the Parliamentary Assembly of BiH.
IMPLEMENTING THE RULINGS WOULD RESULT IN THE DISAPPEARANCE OF SRPSKA, AND BiH WOULD TURN INTO A CIVIC, UNITARY BiH
According to their opinion, they must be elected throughout BiH as a single electoral unit, not from entities and without ethnic affiliation. Therefore, implementing these rulings would result in the disappearance of Republika Srpska as a highly autonomous federal unit, the disappearance of mechanisms to protect Srpska and the Serbian people, and BiH would turn into a civic, unitary, and folklorically multicultural state without constitutiveness and federal ethno-territorial representation.
In a word, Dayton BiH and the Dayton Constitution would disappear.
Simply put: the significance of federal representation of peoples in the Presidency would be lost, the protection of vital national interests of the entities in the Presidency would be lost, federal representation of Republika Srpska and the constituent people in the House of Peoples of the Parliamentary Assembly of BiH would be lost, and all elements elaborated in the Dayton Constitution, both of the peace agreement and constitutional provisions reflecting real social and historical circumstances at the time of the Constitution’s adoption and today, 29 years later, would be eliminated.
Long-term, Republika Srpska would no longer be an electoral unit; the entire BiH would be an electoral unit, returning to a unitary, majority Bosniak state of “one man, one vote,” and we must not forget that such a BiH led us into tragic conflicts. It proved incapable of protecting the freedom and rights of three peoples. Therefore, at no cost should the implementation of the Strasbourg Court’s rulings be accepted, as the choice between implementation and non-implementation is a choice between freedom and lack of freedom, between preserving peace or its destruction.
These positions of Republika Srpska have been confirmed by the Venice Commission, which correctly noted: “The division of positions in state bodies among the constituent peoples was a central element of the Dayton Peace Agreement that enabled peace in BiH. In such a context, it would be difficult to deny legitimacy to norms that might be problematic from the standpoint of non-discrimination, though necessary for achieving peace and stability and preventing further loss of human lives.”
IMPLEMENTATION OF THE RULINGS WOULD BE THE GREATEST BLOW TO DAYTON BiH
This would be the greatest, direct, and final blow to the Dayton Agreement, as the content of these rulings is contrary to the very essence of a multi-ethnic pluralistic society, and their implementation is unsustainable, dangerous, politically, sociologically, and socially impossible, socially unacceptable, and unenforceable.
Since 2006, the issue of candidacy for the BiH Presidency has been a topical issue in BiH when Sejdić and Finci, as members of national minorities, filed an appeal to the European Court of Human Rights as they were unable to run for the BiH Presidency.
After this, in 2016, the European Court of Human Rights issued a ruling in the “Pilav” case, where the plaintiff complained that as a Bosniak, he was discriminated against because he could not run for the BiH Presidency elections due to residing in Republika Srpska.
In the “Pudarić” case in 2018, the European Court of Human Rights found that BiH discriminated against Svetozar Pudarić regarding his right to run for the BiH Presidency as a member of the Serbian people from the FBiH territory.
However, we must not ignore the dissenting opinion in the “Sejdić and Finci” case, which stated that these rulings “unpack an international agreement. Does the Court have the right, by helping one citizen achieve human rights, to cause a war rather than be a messenger of peace? Are the rights of applicants to run in elections so unlimited and compelling as to nullify the peace, security, and public order introduced for the entire nation, including themselves?”
The Dayton Peace Agreement constituted BiH consisting of two entities and three constituent peoples – Serbs, Bosniaks, and Croats – while the rights of all others must be respected and honored, ensuring that the rights of one of the three constituent peoples are not violated in the representation system in institutions.
Any decision or change that would disrupt the balance among the three peoples would be dangerous for BiH itself, as BiH is not mature enough for the dismantling of the Dayton Peace Agreement, which was achieved through long and persistent negotiations. There is no ideally best form of internal state organization, but there is a realistic social foundation embodied in the Dayton Constitution that ensures no constituent people lives oppressed while protecting individual human rights.
NO PEOPLE CAN OR SHOULD IMPOSE THEIR VALUES ON THE CONSTITUTIONAL ORDER BENEFITING ONLY THEM
In BiH, no people can or should impose their values on the constitutional and political order that would benefit only them.
Consociational democracy, balance, parity, and consensus, with the absence of any preponderance or domination of the federal, joint level over federal units (entities), or vice versa, by applying constitutional division of competencies, are the true “rulings” that are sustainable and enforceable, unlike the destructive rulings of Strasbourg, negating the Dayton balance.
Source: RTRS
