Series:Fondacija Centar za javno pravo - Projekti

Analysis of the President's legal status and varieties of silent presidentialization of Serbia's Constitutional System

Normativna analiza položaja predsednika Republike i forme prećutne prezidencijalizacije ustavnog uređenja u Republici Srbiji

Author(s): Vladimir Mikić / Language(s): Serbian

Keywords: Constitution of the Republic of Serbia; president; separation of powers; rule of law; political system;

While reading the Constitution of the Republic of Serbia and its relevant laws, one would be forgiven for concluding that the president of the Republic of Serbia is only one of several key institutions. However, presidents tend to out shadow other political and constitutional institutions more often than it would be safe for the effective separation of powers, and the rule of law. This article provides a review of legal framework of the presidential position in the nominally complex system of government in Serbia (a true „checks and balances“ model), comparing it to some of the important arrangements contained in the country's previous constitutional text. The author concludes that relevant documents aim at reducing the role of president to almost marginal level of the political system. However, what is existing in fact is the tendency to make president a key legislator, constitution-maker, formal supreme commander of the military, and a person who does not need to obey the rule of term limits. The article sums up those four capital examples as a prelude to conclusion of growing presidential power in the Republic of Serbia, throughout more than a decade of the life of the Constitution that has never been formally amended.

Second expert discussion on the evaluation of the work of judges and prosecutors in BiH

Druga stručna rasprava o vrednovanju rada sudija i tužilaca u BiH

Author(s): Author Not Specified / Language(s): Bosnian

Keywords: discussion; BiH; judges; prosecutors; work evaluation;

Constitutional Appeal in Serbia: Space for Tension between the Constitutional Court and the Supreme Court of Cassation

Ustavna žalba u Srbiji: prostor za tenzije između Ustavnog suda i Vrhovnog (kasacionog) suda

Author(s): Marija Draškić / Language(s): Serbian

Keywords: Constitution; Constitutional Court; Supreme Court of Cassation; court rulings; protection of human rights and freedoms; public law; Serbia;

The relationship between the Constitutional Court and the Supreme Court of Cassation was not particularly controversial in the period when Constitutional Court`s jurisdiction was kept in the domain of classical jurisdiction in the review of constitutionality and legality of general legal acts. However, when in 2006 Constitutional Court obtained competence for the adjudication on the constitutional appeal and therefore entered the space of constitutionally guaranteed human rights and freedoms`direct protection, a fierce discussion broke out whether Constitutional Court may annul disputed court rulings - especially the decisions of the highest court – whenever it would find that those rulings had infringed constitutionally guaranteed rights. In those proceedings, the Constitutional Court acted in line with its constitutionally established competence, reviewing disputed court rulings to the extent necessary to determine whether ruling violated or denied a constitutional right and freedom, as alleged in the constitutional appeal. Although the difference in the Constitutional Court`s and courts’ of general jurisdiction competence can be well seen and explained on normative and even on practical level, in the jurisprudence it is not always the case. Namely, likewise the courts of general jurisdiction, as well as the Supreme Court of Cassation, sometimes failed to observe the particular legal cases from the broader horizon of constitutional law, causing their decisions to come to the Constitutional Court and be annulled on the grounds of established violation of guaranteed rights and freedoms, it`s also true that in some other cases the Constitutional Court had a tendency to step out of its jurisdiction and get inadmissible close to the character of control by the higher instance over the rulings of the courts. Nevertheless, such particular cases should be an impulse to judges, legal theoreticians and authors, general public included, to contribute with their arguments to controversial issues` resolving, and not to a priori generally negate the Constitutional Court`s nature of human rights and freedoms protector which stands above the courts of general jurisdiction. In other words, although the Constitutional Court is often labeled as “stronger”, “higher” or “superior” in the relation to judicial power, what matters in reality is the complementary acting of the Constitutional Court and courts of general jurisdiction, with mutual appreciation and arguments respected, especially when those arguments are opposed. Only in that way, in a partner relationship, in mutual interaction and dialogue, whose frames are defined by the Constitution, Constitutional Court and judicial power can contribute to the real rule of law and complete protection of human rights and freedoms.

Institutional Physiognomy of Constitutional Complaint in the Republic of Serbia in Light of Comparative Constitutionalism

Institucionalna fizionomija ustavne žalbe u Republici Srbiji u svetlosti uporednopravnih rešenja

Author(s): Darko Simović / Language(s): Serbian

Keywords: Constitution; Constitutional Court; Serbia; constitutional complaint; physiognomy of constitutional complaint; public law;

In this paper the author analyses the institutional physiognomy of constitutional complaint in the Republic of Serbia, as well as it implementation in practice in light of institutional models of three respectable countries − Germany, Austria and Spain. Furthermore, it looks at some specific characteristics of constitutional systems which have subsequently established this legal remedy. Regarding the fact that comparative law does not provide an uniform institutional model of constitutional complaint and the limited experience of the Republic of Serbia with this institute, many questions have been raised in that field in our theory. At first glance, it seems that the 2006 Constitution of Serbia has very extensively established the possibility of utilizing constitutional complaint, which created a risk of impeding the work of the Constitutional Court. Data regarding the work of the Constitutional Court shows that deciding-on constitutional complaints has become the dominant competency of this body. Because of that it is necessary to establish more efficient mechanism of preliminary selection of constitutional complaints. In addition, the possibility of the Constitutional Court to annul court decisions has created tension between this Court and the High Court of Cassation. Hence, the relationship between the Constitutional Court and the ordinary courts must be more precisely and consistently regulated by a normative framework. In any case, the decreasing number of cases appearing before the European Court for Human Rights against Serbia shows that constitutional complaint is an increasingly effective legal remedy. However, for full affirmation of constitutional complaint as the legal remedy for protection of human rights, it is necessary to also develop an appropriate legal culture, which requires time.

Legal Protection in the Relationship between the Federation and the States in Germany

Rechtsschutz im Bund-Länder-Verhältnis

Author(s): Stefan Haack / Language(s): German

Keywords: Legal protection; Germany; federation and states; federal system; constitution; German federalism;

This article investigates the justiciability of the relationship between the Federation and the States within the federal system in Germany. Firstly, it will be discussed if it is possible to refer to subjective rights of the involved parties regarding the competences in the federal State. Moreover, the question about the existence of a legal basis („if“) and the question about the control of limits of the exercise of powers („how“) will be distinguished. Furthermore, the possibilities of a legal enforcement of rights and obligations resulting from the relationship between the Federation and the States will be examined in some selected fields. The selected fields include disputes about legislative authority, jurisdiction for administration, budgetary constitutional law, disputes resulting from contracts between the Federation and the States and about the use of coercive action. The main emphasis has been put on the distinction between the legal protection in constitutional and general courts. The overall presentation of legal protection in the relationship between the Federation and the States shows that this relationship forms justiciable relations under the German Basic Law. Accordingly, the German federalism is rightly called „justiciable federalism“.

Establishment of BiH-Federalism: Aggregation or Deregulation

Uspostavljanje BiH-federalizma: agregacija ili devolucija?

Author(s): Marko Stanković / Language(s): Serbian

Keywords: Bosnia and Herzegovina; federalism; constitution; international treaty; unitary state; multinational community;

Federalism applied in Bosnia and Herzegovina is very original, starting with the constitution adopted in the form of an international treaty, all the way to a constitutional court composed of foreign nationals. This unique arrangement, which is a combination of the elements of two forms of federalism - the confederation and the federation, has been functioning for almost a quarter of a century. The first subject of analysis in this paper is the legal nature of constitutional arrangement in Bosnia and Herzegovina. Thereafter, attention is directed to the way it has originated and an attempt to answer the question of whether it arose by unification of independent entities (association) or by changing the internal structure of an earlier unitary state (devolution). After considering older, dichotomous theories about the emergence of federal systems, more recent, trichotomous theories are also considered. At the very end, there are some reflections on the future of federalism in multinational communities in general and especially Bosnia and Herzegovina.

Federalism and consociation in the constitutional system of BiH

Federalizam i konsocijacija u ustavnom sistemu BiH

Author(s): Goran Marković / Language(s): Bosnian

Keywords: Bosnia and Herzegovina; federalism; constitution; federal state; ethnic federalism;

Bosnia and Herzegovina is one of the few complete consociational federal states. Under the „complete“consociational federation I deem the one which contains all or almost all features of the federation and consociational democracy. The ethnic federalism can't be considered as the equivalent of the consociational federation. Other ethnic federations, with the exception of Belgium, could be at best understood as semi-consociational federations. In Bosnia and Herzegovina, the federalism is complemented with consociational principles, not only regarding the composition of the institutions, but also, which is particularly important, regarding the methods of decision-making. It is hard to achieve consequent realization of all principles of the federation and consociation. This was the problem which the constitution-maker in Bosnia and Herzegovina had to face with. The general conclusion, drawn after the analysis of the composition, method of election, and method of decision-making of the institutions of Bosnia and Herzegovina, is that the principles of consociation dominate over the principles of federation, although this conclusion is not without exceptions.

The Political Consequences of the Ethnic Federalization of Bosnia and Herzegovina

Političke posljedice etničke federalizacije Bosne i Hercegovine

Author(s): Elmir Sadiković / Language(s): Bosnian

Keywords: Bosnia and Herzegovina; federalization; federal state; ethnic federalism; constitution; civic identification; identity;

Die Erfahrungen anderer Länder zeigen, dass Föderalismus nur unter bestimmten sozio–historischen und politischen Umständen ein gutes Modell der staatlichen Organisation sein kann. Nachhaltige Föderationen erfordern eine ausreichende staatsbürgerliche Identifikation (Deutschland, Österreich, USA, Schweiz). Andernfalls führt die Anwendung des Föderalismus anstelle der Stabilisierung der staatlich-rechtlichen Ordnung zur Stärkung der Zentrifugalkräfte die nach unabhängiger staatlicher Existenz streben (Belgien, das ehmalige Yugoslawien). Bosnien und Herzegowina hat keine historische Erfahrung mit Föderalismus. Die Entitäten von Bosnien und Herzegowina haben in Bezug auf die nationale Ebene eine äußerst weitreichende Autonomie. Die Erfahrungen mit der Anwendung föderalistischer und consociations Prinzipien in der Verfassungsordnung von Bosnien und Herzegowina in der Nachkriegszeit, vor allem im Entscheindungsprozessen auf nationaler Ebene, sind äußerst negativ. Wir können von ihrer übermäßigen prozeduralen und institutionellen Repräsentation sprechen, die bei asymmetrischer und äußerst breiter Autonomie der Entitäten, alle integrativen Funktionen des Föderalismus ausschließen. Die zusätzliche ethnische Föderalisierung von Bosnien und Herzegowina würde nicht zur Stabilisierung des politischen Systems, der sozialen und ethnischen Beziehungen führen. Das würde die Zentrifugalkräfte nur noch stärken, und langfristig die Existenz von Bosnien und Herzegowina als unabhängigen Staat in Frage stellen.

Fiscal Federalism between Theory and Practice in Bosnia and Herzegovina

Fiskalni federalizam između teorije i prakse u BiH

Author(s): Lejla Ramić / Language(s): Bosnian

Keywords: Bosnia and Herzegovina; federalism; fiscal policy; fiscal federalism; fiscal decentralization; government; budget; public debt; credit rating;

In this article the author discusses theoretical framework of fiscal federalism through his four keys determinants: assignment of functions and expenditures, public revenue assignment, intergovernmental transfers and borrowing. Fiscal federalism deals with these issues which are closely related with fiscal decentralization. Guided by these determinants, the author applied them to a complex state structure in BiH. Fiscal federalism in BiH is intriguing question having in mind current political relations and constitutional order of the state. After detailed analysis, the five striking conclusions drawn by the author are: 1. stronger central government position – current position of central government is not strong enough to lead quality macroeconomic management. One of author's suggestions is transfer of competences from entities to central government in the field of direct taxes. This transfer would enable the principle of costeffectiveness to be achieved; 2. independent fiscal council – fiscal council has two main disadvantages: a) political influence b) insufficient coordination of all levels of government. Fiscal council should be only a financial institution isolated from political influence and should represent a connection between all levels of government including cantons and municipalities; 3. more systematic use of intergovernmental transfers – intergovernmental transfers are important instrument for achieving fiscal equity in fiscal federalism, but in BiH these transfers need to be more systematic as the disparity in the development of regions becomes greater 4. Development budget – condition sine qua non – budgets of all government in BiH should be oriented to capital investments not only to fund a complex administration 5. borrowing – according to an official report, status of public debt is not negative but those responsible must keep in mind the rise in interest rates on domestic debt, poor credit ratings and currency risk for non-euro loans.

Constitutional (a)symmetry against Legitimacy and Stability in the Constitutional Design of Bosnia and Herzegovina

Ustavna (a)simetrija naspram legitimiteta i stabilnosti u bosanskohercegovačkom ustavnom dizajnu

Author(s): Maja Sahadžić / Language(s): Bosnian

Keywords: Bosnia and Herzegovina; constitution; asymmetrical constitutional solutions; multinational constitutional system; federalism; stability;

Unlike traditional federal studies, contemporary studies in federalism recognize that asymmetrical constitutional solutions are not an anomaly but rather necessity, especially in multi-tiered multinational constitutional systems. Nevertheless, federalism studies also recognize that constitutional asymmetries may reflect on legitimacy and stability of the system. Although lacking a structured and comprehensive analysis, academics in Bosnia and Herzegovina often describe the constitutional design of the country as highly asymmetrical. The aim of this paper is then to provide answers to two questions. Firstly, whether, indeed, the constitutional system of Bosnia and Herzegovina is (highly) asymmetrical. And secondly, whether this produces specific effects on the legitimacy and stability of the system.

Aporias of Ethnic Federalism in Bosnia and Herzegovina – An (Un)Successful Post-Conflict Federal Experiment

Aporije etničkog federalizma u Bosni i Hercegovini – (ne)uspeli postkonfliktni federalni eksperiment

Author(s): Darko Simović / Language(s): Serbian

Keywords: Bosnia and Herzegovina; federalism; ethnic federalism; post-conflict period; constitutional framework;

This paper is aimed as responding to the dilemma as to whether the non-functionality of the federalism in Bosnia and Herzegovina is a consequence exclusively of inadequate constitutional framework or should causes be sought in factors outside the institutional ones. With that intent, the first part of the paper analyzes the extent to which the Dayton Agreement avails ideal-typical or at least favourable traits that enable the effectuation of all those functions expected of a fundamental law in a modern constitutional state. In the second part of the paper, the author aims to identify political factors that are impeding the effective functioning of the constitutional system. In accordance with the results of such studies, in the conclusion of the paper the author will discuss the extent to which constitutional reform can be expected and what kinds of strategy should be undertaken for the purpose of improving the functionality of the constitutional system of Bosnia and Herzegovina.

The Role of the Constitutional Court in Profiling the Federal Structure of BiH

Uloga Ustavnog suda BiH u profiliranju federalnog uređenja BiH

Author(s): Harun Išerić / Language(s): Bosnian

Keywords: Bosnia and Herzegovina; federalism; Constitutional Court; constitution; federal state;

In the Paper I examine the role of the Constitutional Court in profiling the federal structure of Bosnia and Herzegovina. Although the Court has missed the opportunities to define Bosnian state as a federation, it has treated it as such, by, for example, indicating the comparative experience of federal states when resolving different cases. Furthermore, I discuss how the Court interpreted the supremacy clause (which proclaims supremacy of the state over entities) and where it failed to do so. When it comes to the competence division between state and entities, the Court has played important role in expending exclusive competences of the state, strengthening state institutions and introducing common competences, precisely framework legislation, which is unknown to the Constitution. On the other hand, the Court failed to introduce unwritten constitutional principle of “federal comity”, especially regarding sensitive issues such as foreign policy. Finally, I discuss how the Court has profiled a cooperative federalism in Bosnian constitutional law and what legal and political consequences it has for the country.

Why Bosnia and Herzegovina is not Switzerland or Germany of Southeastern Europe

Warum Bosnien-Herzegowina nicht die Schweiz oder Deutschland Südosteuropas ist

Author(s): Joseph Marko / Language(s): German

Keywords: Bosnia and Herzegovina; constitution; Dayton Agreement; Constitutional Court; court case; Dayton-Paris peace agreement;

Als von allen Richterkollegen gewähltem berichterstattenden Richter im Fall Nr. U-5/98 des bosnischen Verfassungsgerichts war mir bereits klar geworden, welche Schwierigkeiten die Umsetzung der Dayton-Verfassung mit sich bringen. So hatte das Friedensabkommen von Dayton-Paris eine duale verfassungsrechtliche Struktur mit sich gebracht, die auf einem politischen Kompromiss beruhte. [...]

Legal Nature and Political Reflection of Federalism in Bosnia and Herzegovina

Pravna priroda i političke refleksije bosanskohercegovačkog federalizma

Author(s): Lejla Balić / Language(s): Bosnian

Keywords: Bosnia and Herzegovina; federalism; constitution; Dayton Peace Agreement; entities of BiH;

Constitution of Bosnia and Herzegovina defines that Republic of Bosnia and Herzegovina, shall continue its legal existence under international law as the Bosnia and Herzegovina with modified internal structure with its internationally recognizes borders. So it can be concluded that transformation of Bosnia and Herzegovina from unitary state to complex state has been result of devolution (changing internal structure of state). But, ever since the Dayton Peace Agreement was signed there has been continuous disagreements about the way that Bosnia and Herzegovina has originated. Despite precise constitutional provisions, some theoreticians consider Bosnia and Herzegovina as a “new” state, result of unification of independent states (Republic Srpska and Federation of Bosnia and Herzegovina) and on that premise they define Bosnia and Herzegovina as confederation or union based on idea of entity statehood. So the main focus of this paper is to analyze question of identity and continuation of Republic of Bosnia and Herzegovina with “Dayton” Bosnia and Herzegovina and to determine mode of origin of Bosnia and Herzegovina as devolution or association.

Hate Speech on Internet: International Standards and Protection

Govor mržnje na internetu: međunarodni standardi i zaštita

Author(s): Sevima Sali-Terzić / Language(s): Bosnian

Keywords: Hate speech; internet; cyber space; cyber crime; international standards; human rights; protection of human rights; criminal law;

Hate speech on Internet has been more present in public discourse in Bosnia and Herzegovina in the last years, as noted by ECRI and European Commission in their reports. The particular problem presents the fact that, despite ECRI recommendations from 2016, and obligations that BiH accepted by ratification of the Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems, criminal laws have not been amended in a way to conform to the requirements set forth in this document nor in Committee of Ministers' Recomendation 97(20). Also, there is no adequate protection in civil or administrative laws that would allow those affected by on-line hate speech to seek redress. It is argued in this Article that the competent authorities should develop a comprehensive strategy to tackle on-line hate speech. This strategy should include different measures such as: legislative amendments in criminal and civil laws, enactment of a separate law that would include a clear definition of hate speech, obligations of on-line media in relation to establishing mechanisms for more efficient monitoring and prevention of hate speech, as well as their civil liability for hate speech in their publications and for users generated content. However, all legislative measures should be carefully designed in order not to undermine or allow disproportional restrictions to the freedom of speech or to have “chilling effect” on media or to discourage public debate and criticism. Until then, the courts should adhere to their constitutional obligation to directly apply ECHR and should interpret inadequate laws in a way that will not undermine the Convention rights.

Criminal Law Aspects of Hate Speech on Electronic Media and on the Internet

Krivičnopravni aspekti govora mržnje na elektronskim medijima i na internetu

Author(s): Ljiljana Filipović / Language(s): Croatian

Keywords: Hate speech; criminal law; internet; electronic media; human rights; right to free expression;

The paper considers some criminal law aspects of “hate speech” on electronic media and internet. After the definition of meaning of the term “hate speech” provided for the needs of the paper, and a review of obligations of the member States concerning prohibition and criminalization of hate speech in certain international legal documents, the paper also gives a review of the manner and scope of criminalization of hate speech in the criminal codes in force in BiH. In addition to an analysis of the principal legal elements of the related criminal offenses, the paper pays a special attention to the preconditions which must be satisfied in order that a conviction for the criminal offense of hate speech is not in violation of the right to free expression as one of the fundamental human rights. The paper also refers to the responsibility of journalists and media for hate speech and its spreading, as well as the responsibility of mediators – service providers for hate speech of others.

Analysis of the Normative and Institutional Framework for the Prohibition of Hate Speech in the Republic of Serbia

Normativni i institucionalni okvir zabrane govora mržnje u Republici Srbiji

Author(s): Radomir Zekavica / Language(s): Serbian

Keywords: Republic of Serbia; hate speech; media; internet; legal framework; human rights;

After analyzing the prohibition of hate speech in international law and practice, the author analyzes the normative and institutional framework for hate speech prohibition in Serbia. The analysis points to valid legal solutions to this prohibition, regulations of regulatory bodies that are responsible for combating hate speech in print and electronic media and the Internet, and then provides an overview of institutional mechanisms of protection against hate speech. After that, the author gives a critical overview of the functioning of the normative-institutional framework for the prohibition of hate speech and points to the key problems, first of all: the problem of media freedom, the high degree of non-recognition of the essence of discrimination and hate speech among representatives of the public authorities, the problem regarding the functioning and independence of regulatory bodies, but also the judicial system in general. Political discourse in Serbia is burdened with the spirit of intolerance and rhetoric that often contains hate speech. The fact that pro-government media often appear as actors of such rhetoric is worrying, as it points to the readiness of the public authorities to promote a critical dialogue that is the premise of a healthy democratic society.

Hate Speech, Election Process and the Right to Freedom of Expression

Govor mržnje, izborni proces i pravo na slobodu izražavanja

Author(s): Franjo Dragičević / Language(s): Bosnian

Keywords: Hate speech; election process; right to freedom of expression; speech in election campaigns; human rights; election law; public law; constitution;

The author analyses the use of hate speech in the election process from the aspect of the right to freedom of expression in order to contribute to the understanding of this topic and to point to potential inconsistencies in the legislation and its practice. The review of the relevant provisions of the Election Law of Bosnia and Herzegovina, as well as the practice of the European Court of Human Rights, Central Election Commission BiH, Court of BiH and the Constitutional Court of BiH, strives to answer the question of whether the provisions of the election legislation are providing the adequate action against hate speech as the legitimate aim for interference in the right to freedom of expression. The analysis shows that forbidden expression in the Election Law is narrowly defined compared to the concept of hate speech that is commonly used, and that the prohibited expression should be more adequate and precise if it intends to achieve a clear goal, i.e. a prevention of hate speech in the election process. Therefore, the author considers that the balance between hate speech and the right to freedom of expression is shifted in favor of freedom of expression, so it is necessary to re-establish the balance between the social need to suppress hate speech and the right to freedom of expression by using systematic legal interventions.

Judgments of the European Court for Human Rights in Cases Sejdić and Finci, Zornić, Šlaku and Pilav – nudum ius in Bosnia and Herzegovina

Presude Evropskog suda za ljudska prava u predmetima Sejdić i Finci, Zornić, Pilav i Šlaku – nudum ius u Bosni i Hercegovini

Author(s): Harun Išerić / Language(s): Bosnian

Keywords: European Court; human rights; court case; Sejdić-Finci case; constitution; elections; public law;

In December 2019 it will ten years of Sejdić and Finci judgment of the European Court for Human Rights. It was followed by Zornić, Šlaku and Pilav judgments. The Court found that Bosnian Constitution was not in the line with the European Convention for Human Rights. In Zornić and Šlaku judgments under Article 46 of the Convention, Court stated that in order to implement these judgments, Bosnia and Herzegovina would have to introduce constitutional and legislation amendments. All four attempts by B&H public authorities to enforce Sejdić and Finci group judgments were unsuccessful. These attempts were characterized by: a short deadline for the drafting constitutional amendments and amendments to the Electoral Law, failure to hold sessions of the working group/parliamentary commission due to the absence of its members and consequent lack of a quorum, apparent transparency in work and lack of will to fulfil the mandate of the working group/parliamentary commission and efforts to reach an agreement on amendments. Parallel to these formal attempts, there was non-institutional process with the aim to reach a political agreement on constitutional reform. This two years process involved seven presidents of parliamentary political parties and it was facilitated by European Union. The process was not transparent, public has no insights about different proposals and it was conducted only in closed circle of seven politicians. Eventually it did not deliver any results. In order to have Court’s judgments implemented, a few conditions need to be met: it has to be done within Parliamentary Assembly which has a competence to change constitution, Council of Europe bodies like Parliamentary Assembly, Secretary General and its member states should act in synergy to produce a pressure on Bosnia and Herzegovina to fulfil its international obligation such is Court’s judgment implementation and Bosnian politicians have to understand implementation of these four judgments as issue of the rule of law and not to use it for its party and ethnic interests.

Constitutional Axiology of Republicanism and Activity of Parliamentary Parties in Bosnia and Herzegovina: Contradictions, Apologies and Recommendations

Ustavna aksiologija republikanizma i aktivitet parlamentarnih stranaka u Bosni i Hercegovini: kontradikcije, apologije i preporuke

Author(s): Elvis Fejzić / Language(s): Bosnian

Keywords: Bosnia and Herzegovina; parliamentary parties; democracy; post-Dayton politics; constitution; ethnicity;

Political axiology of Republicans has been continuously depreciated in post-Dayton political process. This process has been created and regulated by ethnocratic political representatives in accordance with their absolutist and monocratic ideology. The flawed Constitution of Bosnia and Herzegovina is an outcome of the extorted peace agreement, that allows ethnocratic elites to achieve a hegemonic position and obtain incontrovertible political power. Thus, it is almost impossible to speak about democratic or legitimate nature of the Constitution, since it has not been created, proposed and adopted in accordance with normative rules of democratic procedure. Considering that several institutional opportunities for constitutional changes – that evidently were not a priority for ethnocratic political actors - have been exhausted, noninstitutional political activities and referendum democracy seem a rational choice and solution for designing, proposing and implementing constitutional changes in Bosnia and Herzegovina.