Referendum i njegova (zlo)upotreba: pravni aspekt
Referendum and its (mis)use: the legal aspect

Author(s): Zlatan Begić
Subject(s): Law, Constitution, Jurisprudence, Constitutional Law, Public Law
Published by: Fondacija Centar za javno pravo
Keywords: Public law; constitution; Constitutional Court; BiH; FBiH; RS; referendum; legal framework; High Representative;
Summary/Abstract: The referendum is a democratic institution that is fully complementary to the concept of governance based on democratic principles. Unlike the Republic of Srpska, subject matter of direct citizen participation in decision-making process is not regulated by the Constitution of B&H and Federation of B&H nor by the other legislative acts. This subject matter is only partially regulated in Federation of B&H at the local self-government but not at the level of this entity and cantons. Complex states, such as Bosnia and Herzegovina, must be based on negotiation and consensus between different political actors which represent various economic, regional, ethnic and other interests. Cooperation of these subjects must be provided in good faith and within the limits of law, and must be located within the relevant institutions of the system. It seems that crucial mistake made by the international community in Bosnia and Herzegovina was the allocation of negotiation of constitutional changes and other key issues from state institutions to the informal centers of power, located around political leaders and party leaderships, thus giving them some kind of legitimacy and competencies that do not belong to them in accordance to inner and international law. Thus, responsibility of elected representatives in government institutions have been reduced to a great extent. This process caused an opportunity for manipulation with citizens which culminated with adoption of the Decision on calling a republican referendum in Republic of Srpska. As will be seen from the text that follows, not only the Constitution of Bosnia and Herzegovina, but also the Constitution of the Republic of Srpska were violated by the mentioned decision.

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