The constitutional identity of Bosnia and Herzegovina is not a political or academic phrase, but a constitutional-legal category that encompasses a complex state structure, the division of competences, the protection of entities and peoples, equality, parity, and consensus, wrote Siniša Karan, professor of constitutional law, in a column for SRNA.
SRNA publishes Professor Karan’s column in full:
Republika Srpska, by signing the Dayton Peace Agreement, accepted a complex confederal-federal Bosnia and Herzegovina, contributing its statehood to a new, internationally verified constitutional order.
The Dayton Agreement was an act of state-legal compromise, not the abolition of the statehood of Republika Srpska, which in that process obtained international legal verification and a constitutionally guaranteed status as a state-forming subject.
The Geneva and New York principles, which preceded Dayton, represent a pre-constitutional consensus and a source of Bosnia and Herzegovina’s constitutional identity.
They were incorporated into Annex IV of the Dayton Agreement and constitute the essence of the constitutional being of Bosnia and Herzegovina.
Accordingly, the constitutional identity of Bosnia and Herzegovina consists of the following principles and values: a complex state structure resulting in a strict division of competences; equality of the entities and constituent peoples; consensus as the basis of decision-making; parity; and mechanisms for the protection of the vital interests of entities and peoples.
Constitutional identity is an immutable category. It cannot be changed even by constitutional amendments, let alone by decisions of constitutional courts.
However, thirty years after Dayton, a continuous, systematically designed process of undermining the agreed constitutional order has been underway. In this process, the Constitutional Court of Bosnia and Herzegovina, together with the institution of the High Representative, has assumed the role of creator of a parallel, political constitution, contrary to the original Dayton text.
Through their actions, the Constitutional Court and the High Representatives (who are not a constitutional category) have ventured into a sphere beyond their competences, directly intervening in the internal constitutional structure of one of the state-forming entities. Such conduct does not protect the Constitution; it reshapes it. By such actions, the constitutional identity of Bosnia and Herzegovina is being dismantled.
Before the Dayton Peace Agreement, Republika Srpska existed as an independent state-forming political and legal community. Dayton transformed its statehood but did not abolish its constitutional-legal being. Any institutional action that systematically derogates the agreed principles constitutes an attack on the very essence of Dayton Bosnia and Herzegovina.
The constitutional identity of Bosnia and Herzegovina is not a political or academic phrase, but a constitutional-legal category encompassing a complex state structure, division of competences, protection of entities and peoples, equality, parity, and consensus. The dismantling of any of these pillars means dismantling Bosnia and Herzegovina as it was agreed in Dayton.
Preserving the Dayton Agreement, as the framework of this constitutional identity agreed by the three peoples, is an international legal obligation and a prerequisite for the survival of Bosnia and Herzegovina as a complex state community.
Source: RTRS
