U 5/98-III: why it is doomed from an interpretive point of view (part 2)

U 5/98-III: why it is doomed from an interpretive point of view (part 2)

The Bosnia-Herzegovina (BiH) Constitutional Court decision of 1 July 2000 (U 5/98-III) attempted to demonstrate that the Dayton BiH Constitution implies a thesis on the constitutionality of all three BiH peoples throughout BiH territory, without qualification. This essay aims to demonstrate that the decision is implausible and that it rests on a flawed interpretation of the constitution.

 Suggested Reading Collaborate GCCT

Please click here to read part one of this essay.

By Dražen Pehar

Now, how was the BH Constitutional Court decision of 1 July 2000 (hereinafter referred to as U 5/98-III) formulated, what is its impact, and what kind of interpretation of the Dayton constitution does it offer? [1]

On 12 February 1998, Alija Izetbegović, the then Bosniak-Moslem member and chair of the BH Presidency, issued an appeal to the BH Constitutional Court. In his application Izetbegovic demanded that the Court review and declare many provisions of both Republika Srpska (RS) constitution and the BH Federation constitution unconstitutional in light of the Dayton BH constitution.[2] Izetbegovic’s list is not short and it includes, among others, the following provisions of the (then) RS constitution:

a) The Preamble to the extent that it refers to the right of the Serb people to self-determination, the respect for their struggle for freedom and State independence, and the will and determination to link their State with other States of the Serb people;

b) Article 1 which provides that the Republika Srpska is a State of the Serb people and of all its citizens;

c) Article 2, paragraph 2 to the extent that it refers to the border between the Republika Srpska and the Federation;

d) Article 4,which provides that the Republika Srpska may establish special parallel relationships with the Federal Republic of Yugoslavia and its Member Republics, and Article 68, paragraph 1 which, under item 16, provides that the Republika Srpska shall regulate and ensure co-operation with the Serb people outside the Republic;

e) Article 6, paragraph 2 to the extent that it provides that a citizen of the Republika Srpska cannot be extradited;

f) Article 7 to the extent that it refers to the Serbian language and Cyrillic alphabet as the official language.

As to the BH Federation constitution, Izetbegovic’s application enlists the following provisions as contrary to the Dayton Constitution:

a) Article I.1 (1) to the extent that it refers to Bosniacs and Croats as being the constituent peoples;

b) Article I.6 (1) to the extent that it refers to Bosnian and Croatian as the official languages of the Federation;

d) Article III.1 (a) to the extent that it provides for the authority of the Federation to organize and conduct the defence of the Federation.

For a start, one should notice that Izetbegovic was not appealing about a trifle, nor his application dealt only with the slight terminological harmonization of the entity constitutions’ provisions with the Dayton constitution. For instance, it is immediately clear that the provision of the RS constitution, which deals with the status of RS as a ‘state,’ is not harmonized with the Dayton constitution primarily in a terminological sense. Officially, RS is not designated as a state, but an entity, to which some important attributes of the state were ascribed by the Dayton constitution: e.g. police affairs (or ‘law enforcement’) and even the capacity to form special relations with the neighboring states. Also, it was clearly stipulated that there should be an inter-entity boundary line, which should be marked. However, RS was not defined in the constitution as an independent state comparable to Germany, Italy, or France, but as an entity. Additionally, it is clear from the second part of Izetbegovic’s application, one that deals with the Federation constitution, that his appeal is not primarily related to the notion of ‘statehood,’ but to the status of ‘BH Serbs’ as a constituent people primarily within the RS. Izetbegovic’s appeal implies that he considers the connection between, on the one hand, constituent peoples with the individual entities, on the other, as unconstitutional, that is, as irreconcilable to the letter and intention of the Dayton Constitution.

Now, what was the further fate of Izetbegovic’s appeal? In 1998 and 1999 several public hearings were held.[3] They served a dual purpose: to clarify and justify the tenor of Izetbegovic’s appeal, and to elaborate and justify the positions of the other parties to the appeal, the RS and the BH Federation. For instance, Kasim Trnka, a Sarajevo professor of law, served as Izetbegovic’s spokesman at those hearings. On behalf of the RS, the RS Assembly representatives, professors Kunic and Lukic, were heard, while the Federation parliament representatives were heard from both chambers: Bosniak-Moslem representatives from the lower house of the parliament, and Mato Zovko and Ivan Bender, two Croats, as representatives of the upper house.

Following the hearings, the Court moved to formulate their opinion in the case; by the time of the first partial decision, 30 January 2000, five sessions of the Court took place. We should immediately notice that this is a large number that probably bears testimony to some disagreements within the court and also to the controversial nature of Izetbegovic’s appeal itself. The first partial decision by the Court simply confirmed that Izetbegovic’s appeal was admissible. Two more partial decisions were made, one of 19 February 2000, which is not as important and far-reaching as the third (U 5/98-III), which is the topic of this analysis. Interestingly, two more sessions were held at the court after the February 2000 decision, on 29 and 30 June 2000, attended by all the representatives except Ivan Bender and Mato Zovko. Following the sessions, the court published the U 5/98-III, while a day before the publication, High Representative Petritsch met behind the closed door with the international judges of the Court.

What was the essence of the sessions and debates both before and within the court? Following the adoption of the Dayton BH Constitution, a predictable conflict over the meaning of the constitutional provisions started taking place. The conflict may be pictured in many different ways; however, one simple matter is clear to everyone: the conflict of interpretations should be viewed as a continuation of war by other means. Now, what is the pivotal point, or the driving question, of the conflict? It must be in the question of the key intentions as expressed in the Dayton Constitution and of the key reason why the parties to the General Framework Agreement for Peace in BH (GFAP) adopted the agreement including its central document, BH Constitution, as Annex 4. Weekly ‘Svijet’ published an interesting parallel interview in June 1998, in which Kasim Trnka and Petar Kunić, a Bosniak and a Serb lawyer who would play key roles in the hearings preparatory to the U 5/98-III, voiced their opinions on the GFAP.[4] A very brief and superficial glimpse into the interview can confirm that the two disagree over all the fundamental questions relating to the Dayton Constitution, and a sound assumption can be made that the disagreement between the two is a reflection of a deeper disagreement involving the entire political elite of BH and marking, and reinforcing, a clear interethnic polarization: the Croat and Serb BH elite subscribe to one pole of interpretation, whereas the Bosniak-Moslem elite subscribe to the opposite one.

Hence, Trnka and Kunić view the BH Constitution in opposed perspectives. While to Kunić the Dayton Constitution defines BH as a federation with strong confederal elements, one which resulted from an international treaty between the entities that existed prior to the treaty, to Trnka the constitution defines a state which has temporarily self-transformed in order to end a war; according to Trnka, a day after the adoption of the constitution, the state must start the period of progressive self-recovering in the sense of reconstruction of its inner sovereignty, or its transformation into a non-federated state that may even rebuild its own armed force. Obviously, the two pose irreconcilable claims. Interestingly, the two assume explicit views of the process of interpretation of the GFAP as well: Trnka objected to Kunić that the latter’s interpretation was insufficiently holistic, whereas Kunic replied that his own interpretation was nothing but literal. However, in the parallel interview, neither Trnka nor Kunić offered their reasons in support of their interpretation, which is a shortcoming of major proportions. Now, the interview may serve as a good background story for better understanding of the U 5/98-III. The decision makes an attempt not only to adjudicate on Izetbegovic’s application in relation to a number of provisions of the entity constitutions, but also to settle the key issue: how should one interpret the BH Dayton Constitution.

Before offering my own analysis of the decision, I should add a few more words about the process of debating prior to the passage of the decision. The very text of the decision clearly indicates that the representatives of various parties have adhered to their ethno-political loyalties or sympathies, but this does not exclude, or negate, more or less rational aspects of their argumentation. Perhaps most importantly, the representatives of the BH Federation Parliament did not speak with a single voice. One of the paradoxes of this case is in the fact that the Croat component of BH Federation actually advocated the views strikingly similar to the views proposed by the experts who spoke on behalf of the RS Assembly. For instance, paragraph 46 of U 5/98-III cites the view of the Croat representative from the House of Peoples of the BH Federation Parliament as follows:

The representative of the House of Peoples of the Federation Parliament repeated his objections regarding the admissibility of the present request also in relation to the function of the Dayton Peace Agreement. He stated that a review of the Constitutions of the Federation of BiH and the RS would lead to a total revision of the Dayton Agreement. The basic goal of the GFAP in its present form, which has been accepted both by the RS and the Federation of BiH, was in fact to secure peace in this region. Furthermore, he concluded: “The constituent status of all three peoples in both Entities would return Bosnia and Herzegovina to its position in 1991 when all of them had been constituent according to the former Constitution of BiH. It is not necessary to repeat how this ended … The applicant seems to forget what has happened in BiH during the eight years which have passed since.”

Contrary to such a view, the Bosniak representatives of the House of Representatives of the BH Federation Parliament at one of the hearings expressed their own views fully in line with the views expressed in Izetbegovic’s application, as follows (paragraphs 41 and 42 of U 5/98-III):

According to the written statement of the People’s Assembly of the Republika Srpska, the Constitution of BiH itself establishes the RS as the electoral unit for the Serb member of the Presidency and for the five Serb delegates to the House of Peoples of the Parliamentary Assembly of BiH. These provisions guarantee the equality of Serbs in relation to the other two nations, whose representatives in the same bodies are elected from the Federation of BiH and not from the RS.

In response to this statement, the representatives of the applicant and the House of Representatives of the Federation Parliament contended that exactly those provisions of the Constitution of BiH guarantee the constituent status and thereby the equality of all three peoples on the entire territory of BiH since they are equally represented in those institutions whose power is exercised on the entire territory of BiH. However, the electoral mechanisms for these institutions were of a technical nature only.

In other words, the decision of 1 July 2000 concerns an extremely polarizing issue. The parties to the proceedings, including the applicant and all the representatives of the entities, assumed opposed and irreconcilable views of the problem of a proper interpretation of the Dayton Constitution; hence, an unequivocal decision by the constitutional court had to take one or the other direction, which means that every decision was bound inescapably to destabilize the relations, and ultimately this was the case. However, there was a way to resolve the conflict in a different way, through a different method, which those in the positions of power never considered or never tried with a sufficient seriousness.

Another aspect is worthy of emphasizing: U 5/98-III may be separated into two conceptually distinct parts, or elements. One element is put at the very beginning of the decision. It is the operational part, the immediate legal impact, or conclusion, of the decision. In this case, U 5/98-III declared two provisions of the entity constitutions unconstitutional (i.e. invalid in light of the Dayton Constitution of BH as a state):

A. Regarding the Constitution of the Republika Srpska:

The Constitutional Court declares the following provisions or parts of provisions unconstitutional:

a) Paragraphs 1, 2, 3 and 5 of the Preamble, as amended by Amendments XXVI and LIV

b) The wording a State of the Serb people and of Article 1, as modified by Amendment XLIV.

B. Regarding the Constitution of the Federation of Bosnia and Herzegovina:

The Constitutional Court declares the following parts of provisions unconstitutional

a) The wording Bosniacs and Croats as constituent peoples, along with Others, and as well as »in the exercise of their sovereign rights« of Article I.1 (1), as modified by Amendment III.

However, the other element of the decision is much more important: it’s the remaining part of the decision spread through its 42 pages, a part which provides a justification of the decision. This element proposes some reasons that give support to the operational part or element. A court may say that a provision is nil, or invalid, which simply means that the provision should cease to have a legal effect, and be replaced with another; but, the argumentative/explanatory element is much more important because it places some future limits on the conduct of those concerned with the decision in their legislative role. In our case, the argumentative part is of a major importance also because it indicates the character of the future provision(s) that should replace the invalidated one. However, I will here immediately take note of the following fact; the Constitutional Court could have justified their decision by the following statements: “RS is defined as an entity;” “Bosniaks and Croats should be taken as constituent peoples both to the entity and the state of BH;” and “the Dayton Constitution does not provide for sovereign rights of the constituent peoples.” For the purpose of the case, such statements would have sufficed. However, the BH constitutional court, which here means primarily its international part together with its Bosniak-Moslem judges, decided to move to a different direction. The court decided to endorse the key rationale of Izetbegovic’s application. Both foundations and effects of the decision will be scrutinized in the remaining parts of this essay.

1. Interpretive crux of the U 5/98-III and its cognitive-interpretive flaws

The crux of the U 5/98-III is explained in paragraphs 59 and 73. The 59 stipulates as follows:

Even if the constituent peoples are, in actual fact, in a majority or minority position in the Entities, the express recognition of Bosniacs, Croats, and Serbs as constituent peoples by the

Constitution of BiH can only mean that none of them is constitutionally recognized as a majority or, in other words, that they enjoy equality as groups. It must therefore be concluded, in the same way that the Swiss Supreme Court derived from the recognition of the national languages an obligation of the Cantons not to suppress these language groups, that the recognition of the constituent peoples and its underlying constitutional principle of collective equality poses an obligation on the Entities not to discriminate in particular against these constituent peoples which are, in actual fact, in a minority position in the respective Entity. Hence, there is not only a clear constitutional obligation not to violate individual rights in a discriminatory manner which obviously follows from Article II.3 and 4 of the Constitution of BiH, but also a constitutional obligation of non-discrimination in terms of a group right if, for instance, one or two of the constituent peoples are given special preferential treatment through the legal system of the Entities.

The 73 stipulates as follows:

Indeed, from a functional point of view, the Dayton Constitution is part of a peace agreement as the name “General Framework Agreement on Peace in Bosnia and Herzegovina” clearly indicates. Thus, as it may already be seen from the wording of Article VII of the GFAP and paragraph 1 to 3 of the Preamble of the Constitution of BiH, “peaceful relations” are best produced in a “pluralist society” on the basis of the enjoyment of human rights and freedoms and, in particular, through the freedom of all refugees and displaced persons to return to their homes of origin as guaranteed by Article II.5 of the Constitution of BiH. Moreover, this provision also refers explicitly to Annex 7, which in Article I expressis verbis states that “the early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina.” It therefore follows from the context of all these provisions that it is an overall objective of the Dayton Peace Agreement to provide for the return of refugees and displaced persons to their homes of origin and, thereby, to re-establish the multi-ethnic society that had existed prior to the war without any territorial separation that would bear ethnic inclination.

In other words, in the part that supplies justification, BH Constitutional Court sides explicitly with the political-legal rationale of Izetbegovic’s application. However, in the third section of this essay, we will see that such a characterization of the U 5/98-III meets an insurmountable obstacle in a procedural sense. For now, it is clear that the constitutional court endorses Izetbegovic’s key notion: that the entities are inherently multiethnic; secondly, that the constituent peoples are equally constituent throughout the BH territory; and, thirdly, that the necessity of non-discrimination between constituent peoples within the entities as well follows from such premises. Additionally, it transpires from paragraphs 86-95 (the relations within the RS) and 130-139 (the relations as found within BH Federation) (that address the issue of refugee return to the entities) that, through U 5/98-III, the Constitutional Court clear the road for a soon expected return of the “non-minority” constituent peoples to the entities from which they had to flee; and they also clear the road for a post-return transformation of the entities into de facto multiethnic units that cannot be mutually differentiated. This is very unambiguously indicated in the last proposition of paragraph 73.

What is the basis of the Court’s interpretation of the BH Constitution? Looking into the essential factors of legal interpretation as explained in the first part of the essay, it is clear that the Court’s reasoning is founded on some erroneously presented, or irrelevant, facts. We should place emphasis primarily on the following fact: whenever one interpret an agreement, and the Dayton Constitution is a part of an agreement, one need to consider some information that clarifies, in historical terms, the process of adoption of the agreement, or the history of agreement-making, to put it simply. The BH Constitutional Court published their decision on 1 July 2000 by which date the memoirs of the key actors of the Dayton negotiations, Richard Holbrooke and Carl Bildt, were already published.[5] The Court makes no mention of, and thus gives no consideration to, those valuable documents. For instance, Holbrooke’s book contains a very clear, honest, and telling description of the reasons for which Izetbegovic adopted the skeleton of the constitutional structure of the post-Dayton BH, and it gives a clear account of the way in which Holbrooke presented the key contours of the Dayton compromise to Izetbegovic;[6] however, BH Constitutional Court in the U 5/98-III shows no sign of its appreciation of the historical data Holbrooke presented. This is obviously one of the major flaws of the decision because the historical information of the kind offered by Holbrooke or Bildt could help us formulate more reliably our interpretation of the tenor of the Dayton Constitution and of the purposes in light of which the very parties constructed and understood the wording of the agreement.

Furthermore, the Court fails to take into account some additional and valuable sources of information. For instance, they do not give considerations to the comments on the Dayton constitution that Izetbegovic passed and published prior to the U 5/98-III proceedings. Izetbegovic said many things about the Dayton compromise in both 1996 and 1997, but the BH Constitutional Court found them of no interest in formulating its interpretation of the key purposes of the compromise. For instance, in a November 1996 interview Izetbegovic sent the following message to the Bosniak-Moslem constituent people of BH:

I already said that, in Bosnia such as it is, we are forced to choose between a division of territory, on the one hand, and a division of rule on the other; or, more precisely: either a full sovereignty in a divided Bosnia, on a part of its territory, or a divided sovereignty in the whole of Bosnia. The option of full Bosniak rule in the whole of Bosnia is impossible. I say this to our people so that they find it easier to cope with those frictions over the issue of division of responsibilities in the BH government or in the BH Federation government.[7]

Undoubtedly, this is a cognitively valuable comment, but the Court seems to have shied away from giving an account of such, or other, historically relevant considerations. Additionally, there is a document to which many UN Security Council resolutions on BH refer, and which is of a major importance for understanding the role and status of constituent peoples in the Dayton Constitution; but again, the BH Constitutional Court makes no use of the document in the U 5/98-III: the document concerned is named “Dayton Agreement on implementing the BH Federation,” which is the second international treaty signed during the Dayton talks.[8] In other words, measured by the standards of historical analysis, which unavoidably plays an important role in legal hermeneutics,[9] the U 5/98-III is flawed and unfounded.

However, that is not all. The U 5/98-III is not only divorced from the relevant historical documents; even worse, it is founded on fabricated, or manipulated and corrupted, historical data. For instance, today we know that Izetbegovic deliberately refused to open the room for the third constituent people, i.e. ‘Serbs’, in the BH Federation Constitution; or, that he constituted the Federation with the understanding that it is an entity constitutionally shared by Bosniak-Moslem and Croat peoples: in 1994, he explicitly stated that Serbs could not be one of the BH Federation constituent peoples because this would mean giving Serbs “a half of the power in the entire BH, but then also a third in the other half.”[10] Today we know this because, in the meantime, the transcripts of BH Presidency sessions were published, and at one session Izetbegovic issued the aforementioned statement on the status of Serbs in the BH Federation entity. However, even without our possession of those transcripts, it makes no sense to assume that Izetbegovic accidentally forgot to add the Serbs as the third constituent people of the BH Federation. Such an assumption is so irrational that one should not include it into his or her legal interpretation. Now, in 1998 this is clear both to Izetbegovic and to the BH Constitutional Court. Besides, it is clear that this must pose an obstacle both for Izetbegovic’s application and for the intentions of the Court. How can Izetbegovic defend one view in 1994, and then in 1998 switch, with no explanation, to a different, radically opposed view of the status of Serbs within the BH Federation? Finally, why should the Court accept Izetbegovic’s 1998 view as relevant, when the 1994 view was clearly one of the operational reasons in light of which Izetbegovic adopted the Dayton constitutional structure for BH? As to this conundrum, Izetbegovic’s expert Trnka came up with the following, very witty but also very manipulative, solution:

With respect to the meaning of signing Annex IV to the Framework Agreement by the representative of the Federation of BiH “in the name of its constituent peoples and citizens,” the expert of the applicant argued that the previous existence of the Washington Agreement had established the constituent status of Bosniacs and Croats on the territory of the Federation. The formula given by the declaration was a result of the wish to secure by this signature the legal continuity of the constituent peoples from the Washington to the Dayton Agreement. (para 35 of U 5/98-III)

This solution, however, can be easily seen through, and it is also irreconcilable to the wording of the Dayton agreement on implementing the BH Federation; it is clear that the ‘solution’ cannot explain why Izetbegovic did not “secure the legal continuity” and constitutionality of the BH Federation Serbs as well, and therefore it can be treated as a rhetorical, post-hoc re-sculpting of an Izetbegovic’s decision which is irreconcilable both to the U 5/98-III and his application to the constitutional court. But, we need to keep in mind that the court in fact accept such historical fabrications and manipulation of data, and build it into the justificatory part of their decision. This means that, in terminology of the first part of the essay, the U 5/98-III openly violates one of the basic premises of the valid and persuasive kind of legal interpretation: that such an interpretation must not contain some false beliefs.

Every constitutional court must in their reasoning also rely on some legal analyses or opinions by the other courts. If such is the case, a court needs to rely obviously on the decisions by the other courts that are relevant to the case under consideration; also, the court needs to draw explicitly on those parts of the decisions that are relevant to the case the court considers. An attentive reader, for instance, will notice that the BH Constitutional Court, as a part of the U 5/98-III, refers three times to the 1998 decision by the Supreme Court of Canada „Reference re Secession of Quebec.”[11] However, first, it is clear that the said decision is not applicable to the issue the BH Court considers in U 5/98-III. In the Canadian case, the problem is not one of an assessment of some constitutional provisions at a lower level in light of some constitutional provisions at a higher level; it is one of an assessment of admissibility of the motion to declare independence of the Quebec province. In BH case, the BH constituent peoples have already resolved a similar problem by having adopted the Dayton Constitution. The war and pre-war period may be considered as one at which the issue of secession was indeed relevant to the BH peoples.

Hence, my conclusion from this case is to the effect that the BH Constitutional Court rhetorically invokes the Canadian case to present itself in a favorable light, as a court staffed by some learned legal scholars. This explains why the BH Constitutional Court draws a conclusion from the Canadian case, which is so vague, in one interpretation, and so trivial in another, that one finds it very difficult to understand why a lawyer, or a legal scholar or political scientist, should decide to oppose it:

It is not by chance that the Canadian Supreme Court found in the case “Reference re Secession of Quebec”, (1998), 2.S.C.R., at para. 64 that the Court must be guided by the values and principles essential to a free and democratic society which embodies, inter alia, respect for the inherent dignity of the human person, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society….(paragraph 55 of the U 5/98-III)

Looking now into the very 1998 decision of the Supreme Court of Canada, we will recognize that it does contain a notion that could be applied to the BH case. The Canadian Court states that it is not only that Quebec has a commitment to the remaining federal parts of Canada as a part of the initiation of the process of secession, a commitment to show respect to the federal parts and give consideration to their own opinion concerning its secession; the other parts, too, must, according to the Canadian Supreme Court, give serious consideration to a possible decision by Quebec and treat it as democratic and as a sincere manifestation of the will of the Quebec population. Following such a mutual recognition, the parties should, as the Court view it, start negotiations and thereby arrive at a conclusion acceptable by all. Most importantly, the Supreme Court of Canada show awareness of an important matter by incorporating the following view in the text of their decision: “The negotiations that followed such a vote [for the Quebec independence/secession] would address the potential act of secession as well as its possible terms should in fact secession proceed. There would be no conclusions predetermined by law on any issue. Negotiations would need to address the interests of the other provinces, the federal government and Quebec and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities.” In other words, it follows from this view that, if the BH parties have indeed negotiated a solution to some BH-related issues, the solution should be considered primarily per se, not in light of some provisions of an external law that the Dayton constitution “must have a priori incorporated.” We will see that this is relevant to the understanding of the Dayton constitution and to the issue of constitutionality [12] of BH-peoples as well.

Hence, we can now conclude that the U 5/98-III of BH Constitutional Court violates a number of principles that every valid and plausible interpretation must respect: it incorporates some false beliefs; it does not consider the relevant documents and comments from the period of adoption of the GFAP and after the period; furthermore, it passes in silence over some important parts of the legal sources it cites as being supportive of its views. But, there is another really big, probably the crucial, issue: let us imagine that we endorse the U 5/98-III; in light of the decision, some essential parts of the BH Dayton constitution will become unclear to us. What does this mean? It means that, under the U 5/98-III, some inner semantic connections between some provisions of the Constitution will become, or remain, enigmatic despite the first impression that those provisions are interconnected, and that those interconnections are strongly and rationally motivated. To use an example from the first part of the essay: “John is chasing a dog with a stick.” When we interpret the meaning of the proposition, then the interpretation must be such that the connections between the proposition, on the one hand, and some previous propositions that refer to John, a dog, and a stick, on the other, become clearly presented as a part of the interpretation, and not be left enigmatic and unexplained. BH Constitutional Court violates this simple rule of both general and legal interpretation.

In a part of the U 5/98-III (beginning with para 65), the Constitutional Court deals with the Dayton Constitution provisions concerning the election of officials to the BH Presidency and the House of Peoples of the BH Parliament. It follows from the Court’s reasoning in those paragraphs that they agree with the BH election law currently in force; now, an interested reader may find in some of my essays an abundance of evidence in support of the thesis that the election law is unconstitutional.[13] In other words, the U 5/98-III considers the election of Željko Komšić to the office of the Croat member of BH Presidency by a Bosniak-Moslem voter majority as unproblematic. Hence, the decision is unable to recognize, let alone rectify, the discrimination against Croats through the illegal and unconstitutional election of ‘Croat’ to the BH Presidency by a Bosniak (or Serb) majority vote. In paragraph 65, the U 5/98-III claims as follows:

It must not be forgotten that the Serb Member of the Presidency, for instance, is not only elected by voters of the Serb ethnic origin, but by all citizens of the Republika Srpska with or without a specific ethnic affiliation. He thus represents neither the Republika Srpska as an Entity nor the Serb people only, but all the citizens of the Republika Srpska electoral unit. The same also holds for the Bosniac and Croat Members to be elected from the Federation.

Why does the Court pose the paragraph 65 claim? The answer is again simple. They pose the claim because their intention is to disconnect the fact of the peoples’ constitutionality from the fact or institution of two entities; since the Court intend to transform the entities into multiethnic units, they also intend to disconnect the process of election of a Croat and a Bosniak (as the BH Federation constituent peoples’ representatives) from the BH Federation into the BH Presidency, on the one hand, from the BH Federation as an entity or a separate federal unit, on the other; and they also intend to disconnect the process of election of a Serb (as the RS constituent people’s representative) from the RS into the BH Presidency, on the one hand, from the RS as an entity/or a separate federal unit, on the other.

However, it is clear that the BH Constitutional Court must pay a high price for such, and similar, claims; the highest price is in the fact that the interpretation they propose fails to confirm some otherwise clear semantic connections within the text of the Dayton Constitution. Even if one accepts that the RS and the BH Federation are solely ‘technical’ units for the purpose of the election process, which is absurd, it nonetheless remains unclear why the Republika Srpska elects a Serb as a BH Presidency member, and why the BH Federation elects a Bosniak and a Croat as BH Presidency members. More importantly, the character of the connection between the BH Presidency election provision, on the one hand, and the part of the preamble on constituent peoples, on the other, remains unclear in light of the BH Constitutional Court reasoning. It is clear that, in both cases, we deal with identical categories. What does explain such an identity? In light of the U 5/98-III, such an identity is left mysterious and unexplained, and this also makes the rational motivation of those who adopted the GFAP impossible to understand: in light of the U 5/98-III, they are like blind men who have randomly used an identical category in two different provision of the BH Constitution (the constitutional provision of the method of BH Presidency election and the preambular provision on constituent peoples).

Moreover, the Croat representatives to the Dayton negotiations look like some morally dubious morons who have, apart from having blindly accepted identical collective categories in different constitutional provisions, eagerly endorsed the kind of ethnic discrimination enacted by their Bosniak-Moslem Federation partners, in both 2006 and 2010, through the latter’s election of Željko Komšić as a Croat member of BH Presidency, but a Bosniak-Moslem representative. Now, as Cicero emphasized, if one can give a legal interpretation which is both more useful and more fair/honest, then one should prefer such an interpretation to one that creates unfair relations and leads to discrimination as, in fact, the Constitutional Court’s U 5/98-III does, undermining thus directly both multiethnicity and pluralism of BH. Hence, the U 5/98-III is both unpersuasive and unfounded in light of some convincing moral categories as well as in light of a reasonable assumption that every legal interpretation a) needs to interpret a pattern of language as reasonable and rationally motivated; and b) needs to present an otherwise clear and motivated use of identical categories in different parts of the text as, again, rationally motivated and unenigmatic.

2. Constitutionality: the GFAP/Constitution as a compromise and ‘the remedy for a reason’

The U 5/98-III has another flaw which is of a fundamental kind. First, one cannot discern from the decision the meaning of the notion of ‘constituent people.’ Secondly, as a part of the decision, the notion is re-framed in the way that enables us to interpret it at our current convenience and to treat it arbitrarily as it suits our needs. This means that the decision undermines another fundamental principle of interpretation – that interpretation should not yield a result which is less clear than the target-text of our interpreting. In fact, the Constitutional Court judges, which here involve ‘the Bosniak-Moslem and international section of the Court,’ approached the process of constitutional interpretation as if it is an interpretation of poetry that can generate new meanings in order to expand the thus interpreted ‘poetry’ into new directions. I emphasized in the first part of the essay that legal interpretation cannot be exercised in such a fashion.

In Umberto Eco’s terminology, by having issued the U 5/98-III, the BH Constitutional Court sided with the doctrine of interpretation which lays a primary emphasis on the notion of ‘intentio lectoris’ (the reader’s intention) as a key factor and a guiding premise of every interpretation.[14] The key inconvenience with such an approach amounts to the fact that it can guide the process of interpreting in an arbitrary direction, according to the interpreter’s wish; applied to the process of constitutional interpretation, this means that such an approach can be easily made to serve the interpreter’s narrow political interests or agenda; the interpreted text is treated as a ‘tabula rasa’ on which the interpreter can write, or draw, whatever s/he likes. Now, why do I pose such a seemingly bold claim on the work of the BH Constitutional Court?

A clear intention of the U 5/98-III is to separate the notion of peoples’ constitutionality from the notion and legal existence of entities as BH federal units. However, objectively, the notion of constitutionality cannot be separated from the institutional structure through which it is materialized. This then forces the BH Constitutional Court to apply two interpretive-conceptual strategies as follows: one is to dilute fully the notion of constitutionality, that is, to make it fluid, fuzzy, and unclear; the other is to guide the future relations within BH towards the condition in which both entities and constituent peoples will disappear by making, after the refugee return, such relations fully dependent on numerical relations between majorities and minorities. However, why did the Court decide to sever the link between the notion of peoples’ constitutionality and the existing institutional structure? It is important for us to recognize here an aspect which is of a crucial importance: the notion of peoples’ constitutionality is the only factor that preserves the two-entity, or federal, institutional structure of BH; once the structure is disconnected from the notion of the peoples’ constitutionality, no further obstacle to a full modification of the structure, including the elimination of the entities, remains in place.

Hence, let us return once again to paragraph 59 of the Court’s decision, which clearly states that “the recognition of the constituent peoples and its underlying constitutional principle of collective equality pose an obligation on the Entities not to discriminate in particular against these constituent peoples which are, in actual fact, in a minority position in the respective Entity.” Importantly, the paragraph begins with the statement of the fact that the peoples’ constitutionality means that no people is considered as a majority. When you add up the two propositions, you get a content that makes no sense. On the one hand, the Court claims that the peoples’ constitutionality implies that a difference between a majority and minority cannot be drawn; on the other, it further claims that the peoples’ constitutionality implies equality, and that, hence, it implies an obligation on the constituent people(s) in an entity not to discriminate against a ‘constituent minority’ within the same entity. In other words, the U 5/98-III views the peoples as both constituent peoples and as majorities/minorities, depending on a need. We should also immediately notice that, if we decide to reason as the BH Constitutional Court in this case, we will have to stipulate that the change in numerical relations automatically entails a change in the status of constituent peoples – for instance, a more massive return of Bosniak-Moslem refugees to the RS should imply that they gradually cease to be a ‘constituent minority,’ undergo a transformation into a ‘constituent majority,’ and thus become a people that is constituent to the RS. In this moment, I believe that the Court foresaw that the RS could and should change its official name.

However, this is not the most important aspect of the Court’s interpretive reasoning. The most important aspect is in the Court’s creation of confusion as to the concept of ‘constituent peoples’ in order to create a solid basis for a more radical and far-reaching transformation of political-constitutional landscape of BH in the future. In other words, the Court is actually not interested in the very notion of ‘the peoples’ constitutionality.’ This can be discerned from paragraph 52 of the U 5/98-III, which states as follows: “However vague the language of the Preamble of the Constitution of BiH may be due to this lack of definition of the status of Bosniacs, Croats, and Serbs as constituent peoples, it clearly designates all of them as constituent peoples, i.e. as peoples….” It is very clear what one does read in this paragraph – the Court in fact ignores the notion of the peoples’ constitutionality, and in their reasoning the constituent peoples suddenly become simply ‘peoples.’

The claim that the primary intention of the Court is to disconnect the notion of constitutionality from the institutional structure, not to make all the peoples equal, can be clarified primarily through their treatment of ‘the election system’ as it is defined by the Dayton Constitution. My previous considerations of this issue clearly imply that the Court suppresses the fact that the act of election (of officials to some institutions) primarily means the act of representation of the constituent peoples, and that the relevant Dayton provisions on BH election methods make sense, and can be treated as rationally motivated, only under such an assumption. This is the only interpretation that can enlighten the connection between, on the one hand, ‘Bosniaks, Serbs, and Croats’ as constituent peoples, and, on the other, the constitutional provision on the composition of BH Presidency and the relevant provisions on the composition of BH, or the BH Federation, House of Peoples.

In contrast, in the BH Constitutional Court’s view, ‘the Serb member of BH Presidency’ represents all the RS citizens regardless of their affiliation with a constituent people. Hence, in the reasoning of the Court, ‘constituent peoples’ are not represented in the institution of the BH Presidency at all; hence, the concept of the peoples’ constitutionality is severed from the BH institutional structure, in the Court’s view. This is why I can safely conclude here that the U 5/98-III does not interpret the Dayton Constitution; it remakes, or revises, it in an arbitrary fashion. This is so primarily because every rational and defensible interpretation of the GFAP, including the Dayton Constitution, must correlate the notion of the peoples’ constitutionality with the institutional structures as those are foreseen by the letter of the Constitution.

Here I will emphasize two more things: the U 5/98-III focuses on the notion of the peoples’ constitutionality only in one more sense: as a people in the sense of an owner of a stretch of territory. We can recognize this clearly in the fact that the Constitutional Court considers the territorial division between entities as a territorial separation of peoples, hence, as something inherently negative. However, first, ‘the people as an owner of a territory’ is not a part of the notion of ‘people’s constitutionality.’ Secondly, nothing necessitates the talk about the territorial segregation of ‘constituent peoples.’ Both entities are federal units of a single state; hence they are both constituent parts of a state. The Dayton agreement foresees some necessary merging of the parts, and their constituent peoples, vis-à-vis some state competences, which means that the entities must not only cooperate, but also act as combined into a single institutional structure without a territorial division. Hence, the reference to ‘territorial segregation between the constituent peoples’ simpliciter is, in light of the Dayton Constitution, both misleading and wrong.

The second thing worthy of emphasizing may be put as follows: the fact that the U 5/98-III aims at some deeper and far reaching changes of the constitutional structure may be easily demonstrated by the propositions the Court put forward on the so-called ‘veto-powers’ in BH. Interestingly, and somewhat shockingly, the Court expressed their concern about the veto-powers in the areas considered as ‘a vital national interest,’ in paragraph 124 of the U 5/98-III:

What raises serious concerns, however, is the combination of exclusionary mechanisms in the system of representation and decision-making through veto-powers on behalf of ethnically defined “majorities” which are, nonetheless, in fact minorities and are thus able to force their will on the parliament as such. Such a combined system of ethnic representation and veto-power for one ethnic group – which is defined as a constituent people, but constitutes a parliamentary minority – not only infringes upon the collective equality of constituent peoples, but also the individual’s right to vote and to stand as a candidate for all other citizens to such an extent that the very essence and effectiveness of “the free expression of the opinion of the people in the choice of legislature” is substantially impaired.

One should probably find it bizarre that a constitutional court is able to interpret ‘the veto power’ in such a way. Such a power is constitutionally guaranteed in many states; and, surely and inherently, it does not mean ‘an exclusionary mechanism’ or ‘the forcing of one’s own will on somebody.’ On the contrary – the power actually prevents one from being a victim of imposition and thus has an exclusively protective character. ‘Veto’ amounts to a negative feedback: ‘this submission/law/motion cannot be accepted (without a modification);” and as such it is found in, for instance, the powers of US President vis-à-vis the lower house of the US Congress. Hence, ‘veto powers’ are not exotic or rare at all, and one should even depict them as beneficial due to their capacity to improve a sense of responsibility and foresight in a potential legislator. Also, in paragraph 124 it is important to take note of the swiftness with which the Court moves from qualifying some representatives as ‘constituent people’s representatives’ to ‘the representatives of a (parliamentary) minority.’

Now, what is the peoples’ true constitutionality in the context of the GFAP as a compromise, and why such notion of constitutionality cannot be divorced from the view of the Dayton constitution as a compromise,[15] which the BH Constitutional Court attempted to do by the means of the U 5/98-III? The notion of constitutionality can be reduced to the view of a people as an author of a constitution. The people determine for themselves some basic laws that will guide their political and legal existence, in conditions that the people accepted through their legitimate representatives. This means that the people determine the structure of institutions through which they will be represented as a people, or through which the people will protect their interests through the passage of laws and the running of affairs that are of public interest to the people. In other words, the notion of constitutionality is very simple.

The fact that there are three constituent peoples in BH can be reduced to the fact that three peoples equally took part in the negotiating, and endorsement, of a constitution that defines some institutions to serve equally the interests of the three. The constitution also assumed the form of a compromise by which an armed conflict was brought to a close. Immediately prior to, and in the course of, the armed conflict, the parties were unable to reach an agreement on a desirable kind of constitution – the peoples’ representatives advocated some irreconcilable political-legal ideas, interests, and goals. Then, starting in August 1995, the consensus was being gradually formed, a process which reached its peak with the Dayton negotiations and the official signing of the GFAP at Paris. According to the constitution, the internal structure of BH from the years 1991-1992 was conveniently modified (Article I.1 of the Dayton Constitution). BH continued to exist in international-legal sense, but its internal structure became one of a federated kind of state. Why have the peoples chosen such an outcome?

They have chosen it primarily due to the need of the three constituent peoples to accept and recognize the new structure as legitimate. Serbs have decided not to secede with the provision that they gain their own entity the institutions of which will serve as the sites of the Bosnian Serb representation as a separate people. Croats and Bosniaks ensured for themselves a similar status in the other entity. They decided to be, on shared and equal terms, represented as constituent peoples in that entity. Finally, all three peoples have decided to transfer a part of their powers to the central level of government, to the institutions of BH state. The transfer followed one clear formula: two strong entities, one loose central government.[16] Furthermore, the constituent peoples decided to open their entities to the neighboring states in the sense of the official/institutional establishment of special parallel relations, in accordance with the division between the entity- and state-powers as foreseen by the Dayton Constitution. Summarily viewed, no constituent people are harmed in their fundamental collective rights. They are all represented at both entity- and the state-level, and they have all a set of entity institutions in which their interests can be primarily safeguarded and promoted. In other words, the authentic Dayton blueprint does not discriminate against any constituent people. Additionally, it is clear that all three peoples are also constituent at the level of the entire state, through the bodies of central government that has jurisdiction over the entire territory of BH. In other words, even prior to the U 5/98-III, and without it, the constituent peoples are constituent throughout the BH territory, but, under the Dayton Constitution, the ‘BH’ simply means a set of common institutions endowed with some common and state-making powers.

This structure is then one of a compromise, but it as well has some flaws. It is clear that the ‘Serb people’ of the BH Federation, despite their low numbers, remain an ill-defined category in constitutional-legal sense. And the same applies to the Bosniak and Croat peoples in the RS. This means that I openly concede that, following the adoption of the Dayton structure, some discrimination in some degree remains a feature of the Dayton system, but it seems to me also that this is more a kind of discrimination within the constituent peoples, not one between them. Besides, one should also remind oneself of the key features of the notion of compromise: some sacrifice or loss is accepted in one area for the sake of a gain in another. Hence, the post-Dayton kind of discrimination should be primarily viewed as a price-tag that came attached to the Dayton compromise. Is the price of compromise too high? Having in mind both the tragic losses that the absence of compromise entailed and the inherent value of compromise itself, I don’t think it is. Secondly, and perhaps more importantly, it is only after we recognize the ‘remains’ of discrimination as well as the necessity to ‘pay’ a compromise with a loss in some domain that we can start formulating a plausible and viable response to the fact of discrimination. Now, the discriminatory component must not be taken as an excuse to sacrifice the entire compromise; but, it is also clear that some response to the component must be formulated.

Hence, after the adoption of the Dayton compromise, we needed a kind of a conservative change, one that preserves, not removes, the given constitutional structure. Such a change could have taken place only through the legitimate institutional mechanisms – that is, through the amendments confirmed by both houses of BH Parliamentary Assembly that mean a new, post-Dayton consensus formed on the basis of equality and without a foreign meddling. However, such a change has not taken place due exactly to the moves such as ‘appointment of the Bonn-powered High Representative,’ ‘Petritsch’s amendments,’ ‘Barry’s election rules,’ and certainly the very decision U 5/98-III of 1 July 2000, which was passed by a tiny majority of five, against four, judges of the BH Constitutional Court.[17]

Let us resume now the analysis of the character of legal interpretation that is at the basis of the U 5/98-III. When I presented the notion of the peoples’ constitutionality in light of the Dayton constitution as a compromise, I adhered strictly to ‘Heydon case’ as cited in the first part of this essay. This means that I assumed the premise that the federalization of BH, through the Dayton Constitution, was performed for a good reason, and that it was the remedy to a real mischief of the society that beset it prior to the discovery of the cure. In other words, we need to assume that the constitutional transformation of BH in 1995 serves as a real solution of a real issue that, prior to the transformation, degraded the society and even acted as a fuel to the engine of the Bosnian armed conflict from 1992 to 1995. In other words, when interpreting the Dayton constitutional structure, I was guided by the principle that some common reasons need to be found due to which the structure was conceived as a solution to a grave political and legal issue that burdened the BH as a political community through a period of its history. Such a principle is the only one in light of which one can elucidate the concept of the peoples’ constitutionality and the true purpose of the Dayton-mediated transformation of the pre-war institutional structure of BH.

However, the U 5/98-III refuses to subscribe to such a principle. The decision is not interested at all in the nature of the reason of the remedy that was brought to BH in the form of the federalization of the state based on the notion of ‘constituent peoples’ that consume their rights through some specific, constitutionally defined institutions. Actually, the U 5/98-III does not look into the past at all. Even worse, the decision looks into a distant future that the Court thinks, without a shred of evidence, the parties to the Dayton compromise projected. The decision is thus one based on some fictive collective intentions that will be materialized in a distant future, but such intentions have never been expressed jointly nor projected in a constitutionally recognizable, discursive form. In other words, the decision is premised on a fictive-teleological ‘theory’ of interpretation.

Why do I claim so? Let me repeat the gist of paragraph 73 of the U 5/98-III: “It therefore follows from the context of all these provisions that it is an overall objective of the Dayton Peace Agreement to provide for the return of refugees and displaced persons to their homes of origin and, thereby, to re-establish the multi-ethnic society that had existed prior to the war without any territorial separation that would bear ethnic inclination.” In other words, the decision U 5/98-III implies that, prior to the war, there were no problems at all, and that the Dayton constitution did not bring any remedy because no remedy was needed. The current federalization of BH is just a transient moment, something that will disappear in the future, and for it, measured by the fictive criterion of the goals placed into a distant future, there was no need in the first place.

Hence, the BH Constitutional Court tells us directly that the Dayton Constitution, the key provision of which (I.1) tells us that the internal constitutional structure of BH was modified through the constitution, is not based on rational reasons, and that the agreement’s goal is to self-destruct. The Court views the Dayton constitution not as a remedy for real ills of the political community, but as something that should return us to the age of a non-problematic, even ideal, pre-war past, a BH as a ‘multiethnic society;’ thereby the constitution would effectively cease to apply. In other words, U 5/98-III is drafted in the spirit of the belief that, in 1992, some barbarians, from the East and West, disturbed the idyllic atmosphere of an undivided, multiethnic paradise of BH-society; hence it implies that the Dayton constitution makes sense only as a tool that should revive and recover that period of BH history. This means that the Court thereby demonstrated a full ignorance of the historical factography of the pre-war period in BH, and also a full lack of understanding of the rational core of the Dayton compromise as ‘a remedy for a reason.’ Obviously, this also means that the Court fully identified itself with the political post-war project of Alija Izetbegovic:[18] a renewal of the pre-war, undivided BH, one without entities or constituent peoples and collective rights; a non-consociational BH organized along the ‘one voter-one vote’ principle. Perhaps needless to say, it is due to such politically arbitrary, legally unfounded, constitutional manipulations that the current condition of BH is much worse than at the period of the start of the GFAP implementation.

3. One procedural inconvenience and the myth of the U 5/98-III as a ‘turning point decision on the peoples’ constitutionality’

While discussing the U 5/98-III, we need to have in mind another important procedural fact. The decision was presented to the BH audience as generally binding, and especially it was framed as a decision establishing that all constituent peoples are constituent throughout the BH territory; this means that, according to the thus framed decision, BH entities are naturally multiethnic or should be taken so. However, this is a misrepresentation of the facts pertaining to the history of the decision-making procedure at the Court. Formally, the decision was and remains binding in the operational part which was supported by the court majority. Hence, formally, the entity constitutions should have been amended following the decision, and they were amended.

However, what about the doctrine that was incorporated into the justificatory part of the U 5/98-III? What about the part of the decision that addresses the future direction that the entity legislatures should follow to amend the constitutional provisions that the decision declared unconstitutional? Contrary to an established view, BH Constitutional Court never passed a majority decision on this issue. The Court majority has not supported the 42 pages that make an attempt to justify the decision and that, more importantly, try to divorce the peoples’ constitutionality from the BH entity institutions. Actually, a minority of four judges, including two Bosniak judges and two ‘internationals’ (Joseph Marko [19] and Louis Favoreu), supported the 42 pages of constitutional ‘fairy-tale’- making. The third judge, the Swede Hans Danelius, presented his views separately in a concurring opinion; that is, ‘concurring’ to the operational part of the U 5/98-III.

Looking more closely into his opinion, it is clear that he did not want to deal with the issue of the peoples’ constitutionality. He considered the preamble, in a normative sense, as too weak to support the justification endorsed by the two international judges together with the Bosniaks. That is why in his opinion Danelius draws only on two simple facts: first, the RS Constitution, insofar as it defines RS as a ‘state of the Serb people’, is not in harmony with the Dayton constitution which defines the RS as an entity. Secondly, he claims that the entity constitutions are not in harmony with the Dayton one because the exclusive reference to Serbs in the RS constitution, and to Bosniaks and Croats in the BH Federation constitution, as constituent peoples to the respective entities, according to him, violates Article II.4 of the Dayton Constitution, so-called ‘provision on non-discrimination’: “The enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex I to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” However, one should immediately notice that Danelius, in contrast to Marko or Favoreu, does not outline a constitutional revision through which such discrimination, of e.g. Bosniaks and Croats in the RS, could be removed.

Hence, the most essential conclusion that follows from the way in which the U 5/98-III was procedurally adopted is as follows: the thesis that the international factor to the BH, through the BH Constitutional Court, determined that the BH entities must be multiethnic, is a vacuous myth which gathers its force only from frequent repetition, i.e. from the myth propagation. The majority who supported the decision have indeed supported only its operational part, the injunction to the entities that they need to remove some provisions from their constitutions. Since the very justification is supported by a minority, it cannot be taken as binding at all. Secondly, this explains why High Representative Petritsch issued in 2002 the so-called ‘Airport decision,’ which enforced a large number of amendments on the entity constitutions, and by which, among many other things, the composition of the Federation government was changed to the disadvantage of Croats (one of the two peoples that constituted the BH Federation in the first place) as follows: 8 ministerial seats filled with Bosniaks, 5 with Croats, 3 with Serbs, plus a majority rule of the decision-making. Of course, the U 5/98-III in its explanatory part cannot fully justify ‘Petritsch’s amendments,’ but the latter are in line with the decision. One could also claim that it is only through the amendments, and dictatorial powers of a high representative, that the explanatory part of the Court decision became a part of the constitutional landscape of BH. Altogether, this simply means that neither of the post-Dayton ‘revolutionary’ interventions into the BH constitutional landscape survives a closer scrutiny in terms of a reasonable interpretation, or a legitimate revision, of the Dayton Constitution.

4. Analogies

Abuse of courts, including constitutional ones, by some politically powerful figures who receive a favorable and preferential treatment by the judges, is not an exceptional or rare practice. Especially at the higher levels of judicial decision-making, the judges are appointed by commissions, governments, or presidents, not elected directly by the people. This, however, makes the higher judicial branches especially susceptible to political forms of influence and swayable under the political power-relations. This is why it can happen that a judge delivers his or her verdict not in accordance with the rule and letter of law, but with the demands of the most powerful ones and/or those on whom the judge’s payment, reputation, or future career, most directly depend. It is a phenomenon that is already described, accounted for, and named as “political judiciary” (or politische Justiz, in German). Many democratically minded theorists or practitioners of law and politics warned about the dangers of the phenomenon and tried to prevent at least its repetitive occurrence. For instance, Thomas Jefferson warned about the dangers of ‘judicial despotism’ in the work of the American Supreme Court who pass their decisions behind the closed door and sometimes promote and protect a factional, not a public, interest.[20] Reminding us directly of Jefferson, but drawing in explicit terms mostly on the ideas of President Abraham Lincoln, Robert A. Burt emphasized that, when it comes to the key notions and issues of the US Constitution, no branch of power must delegate to the others the power or right of constitutional interpretation.[21]

There are many examples of a high level court issuing a ruling which is clearly unfair, politically motivated, and contributory to further destabilization of the community to which it is addressed. Let us give just a few examples from the work of the US Supreme Court: Dred Scott v. Sandford,[22] Korematsu v. US, Plessy v. Fergusson, Abrams v. US….All those rulings were unjust, and yet all of them were taken, at least for a period of time, as binding. Of course, many individuals pointed to the rulings’ unfairness and even illegality at the time of the ruling. Also, it is important to emphasize here another feature of such politically motivated judicial verdicts: many of them were later overruled by different means, for instance, by an amendment passed by the congress, or by a later, revisionary ruling by the same court. History of the German judiciary offers the famous example of a 1924 ruling by a Munich court in the case of Alfred Hitler: Hitler was an Austrian who, according to the letter of the law, should have been expelled from Germany because of the coup d’état he attempted in 1923. However, the court decided not to apply the law to Hitler. As the court pointed out, “To a man whose thinking and feeling is German to such an extent as is the case with Hitler….according to this court’s understanding…..the provision of the Law on protection of the [Weimar] republic [through expulsion] cannot be applied.”[23]

The U 5/98-III in its argumentative and explanatory part should be viewed as analogous to the aforementioned rulings. It is a court decision which supplies an interpretation of the Dayton Constitution guided by political ideology and political interests. It is a decision passed exclusively due to the interests of some politically powerful figures, from the USA primarily, who decided to lend political support to a minority faction within the BH. In the process, the wording of the Dayton Constitution was exploited and manipulated in those parts that were exploitable for the given purpose. As demonstrated above, it is clear that the decision can be easily shown to be unpersuasive through some simple arguments that give consideration to the totality of the Dayton Constitution as well as to the context and reasonable purposes of its adoption. Additionally, there is no doubt that, sooner or later, the decision will be formally exposed as unfair and biased, and also as harmful to the BH political community.

The question of how this will be done is less important than the question of what should have taken place instead of this decision. However, the latter question can be easily answered in clear and justified terms. No constitutional court, especially not the one in which a majority can be easily formed by three international and two Bosniak-Moslem judges, can substitute for, or make a better and more enduring impact than, the internal procedures as foreseen by the very Dayton Constitution, primarily the procedure of inter-entity negotiating and the passage of the constitutional amendments by a two-third parliamentary majority. As long as powerful international actors have a different opinion, and as long as they continue exerting a critical influence on the BH-relations, esp. through the figure of the High Representative, BH will remain in the state of a pre-democratic, quasi-pluralistic society that vegetates politically within a frame of a merely fictive statehood at both the entity and the central level.[24]

Dražen Pehar has a PhD in politics and international relations from Keele University (SPIRE 2006), holds an assistant professorship (BiH) in the philosophy of law and in politics with sociology. Dražen is a DiploFoundation Associate, and previously served as Chief of Staff to the BiH Federation President (1996) and as a media analyst to the OHR (1999/2000). Dražen is also part of the Institute for Social and Political Research (IDPI), a member of the Global Coalition for Conflict Transformation

The views expressed in this article do not necessarily reflect the views of TransConflict.

This is my English rendering of the following essay (published by Institute for social and political research, Mostar, on 9 December 2014): „Kritička ocjena interpretativnih aspekata Odluke Ustavnog suda BiH od 1. srpnja 2000. (I.)“ (http://www.idpi.ba/konstitutivnost/ accessed on 20 Sept 2016)


  1. My references to the decision reproduce the text published at the website of the Faculty of Jurisprudence of the Trento University: http://www.jus.unitn.it/download/gestione/jens.woelk/20111028_1108U-5-98-DO-2.pdf (accessed on 24 September 2016); this text contains also four dissenting opinions and the concurring opinion of Judge Danelius; a BSC translation of the English text of the decision, which is far from perfect but is usable, is reproduced at the website of the Office of the High Representative: http://www.ohr.int/ohr-dept/legal/const/pdf/Djelomicna-odluka-3.pdf (accessed on 24 September 2016).
  2. For the text of the Dayton BH Constitution, I rely on the document on the website of the Office of the High Representative: http://www.ohr.int/?page_id=63255 (accessed on 24 September 2016).
  3. U 5/98-III contains also brief reports on those hearings and quotes from the legal representatives’ opinions.
  4. Kunić, P., Trnka K. (1998), ‘Paralelni intervju’, Svijet 21.June, pp. 19-21
  5. Holbrooke, R (1999), To End a War, New York: The Modern Library; Bildt, C. (1998), Peace Journey, London: Weidenfeld & Nicolson
  6. Holbrooke (1999, 96-97)
  7. The citation in Pehar, D. (2011), Alija Izetbegović i rat u Bosni i Hercegovini-Alija Izetbegovic and the war in Bosnia-Herzegovina (a bilingual, Croatian-English edition), Mostar: HKD Napredak, p. 145
  8. Pehar D. (2014), ‘Multiethnic reflections on an unjustifiably suppressed and repeatedly violated Dayton agreement’, IDPI Mostar (August 14): http://www.en.idpi.ba/multiethnic-reflections/ (accessed on 24 September 2016)
  9. How could we understand the relevant intentions of some collective agents if not through some historically scrutinized discursive products, such as documents, texts, statements, and similar expressions and embodiments of such intentions?
  10. For the statement and the context, see Kostić, R. (2013), ‘American nation-building abroad: exceptional powers, broken promises, and the making of ‘Bosnia’,’ in: Eriksson, M., Kostić R. (eds.), Mediation and Liberal Peacebuilding: Peace from the Ashes of War?, London and New York: Routledge (pp. 22-39), p. 28
  11. See http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do (accessed on 24 September 2016)
  12. Some authors who are native speakers of the English language, for instance, Chris Bennett, use the term ‘constituency (of BH peoples)’ as an abstract noun derived from ‘constituent peoples of BH.’ I am, of course, less fluent user of the English than Bennett, but still believe firmly that the noun ‘constitutionality of peoples’ is semantically more pertaining and more precise than the ‘constituency of peoples’ in spite of the use of the phrase ‘constituent peoples’ (not ‘constitutional peoples’) in the preamble to the Dayton Constitution. Furthermore, in my view, ‘constitutionality of the peoples’ means approximately the same as ‘the constitution-making character/nature of the peoples,’ which also indicates that the three peoples (Bosniaks, Serbs, and Croats) are explicitly and equally taken as the makers, or the authors, of the Dayton Constitution.
  13. See, for instance, Pehar D. (2014), ‘Bosnia-Herzegovina – the ‘Komšić’ problem and constitutional logic of ethnic electoral units’ (16 Sep), TransConflict: http://www.transconflict.com/2014/09/komsic-problem-constitutional-logic-ethnic-electoral-units-169/ (accessed on 24 September 2016)
  14. Eco explains the difference between ‘intentio auctoris’, ‘intentio lectoris’, and ‘intentio operis’ (the author’s intention, the reader’s intention and the work’s intention) in his (1992), Interpretation and Overinterpretation, Cambridge: Cambridge University Press.
  15. See also Pehar D. (2002), ‘Civic elements of compromise and the crippling of Dayton’, in: Jones/Lovrenović (eds.), Forum Bosnae – ‘Reconstruction and Deconstruction,’ 15/02, pp. 118-136; and Steiner, Christian (2006), ‘Geneza i legitimnost Ustava Bosne i Hercegovine,’ (Genesis and legitimacy of the BH Constitution), Status 9, pp. 156-160, esp. 158-9; translated from the German by D. Pehar.
  16. Holbrooke (1999, 96-97)
  17. The five included three foreign/international judges who sided with the two Bosniak-Moslem judges against the remaining four BH judges who include two Croats from the BH Federation and two Serb representatives of the RS; this means that, in this case, a domestic judicial minority outvoted a domestic judicial majority with the help of a foreign element. However, such a characterization of the Court majority in this case needs to be qualified in an important detail, for which see section 3 of this essay.
  18. For Izetbegovic’s post-war project, see more in Pehar, D. (2014), ‘Bosnia – the international community and Izetbegovic’s project of dediscoursification,’ (12 Nov), TransConflict: http://www.transconflict.com/2014/11/bosnia-international-community-izetbegovics-project-dediscoursification-121/; and Pehar, D. (2014), ‘Bosnia – Izetbegovic and implementation of the Dayton peace agreement,’ (11 Nov), TransConflict: http://www.transconflict.com/2014/11/bosnia-izetbegovic-implementation-dayton-peace-agreement-111/ (both accessed on 24 September 2016)
  19. Vitomir Popović, a Serb judge, in his dissenting opinion claims that Marko should have been exempted from this case. As Popović states, Marko was a member of the Venice Commission group who, upon a 1996 request of the then High Representative Bildt, gave a positive view on the issue of harmonization of the entity constitutions with the Dayton Constitution; four years later, in the U 5/98-III, Marko endorsed a view contradicting his previous one. In Popović’s opinion, “there is no doubt that this questions his [Marko’s] objectivity in the work on this case and in any case; according to the Rules of Procedure and positive legislation, it represents a valid reason for his exemption from this case. Here, I do not want to mention the manner of voting on the request for exemption but I must say that the judges whose exemption was requested also were deciding on that exemption, which could be seen from the Minutes of the Court’s session when the decision on this request was adopted.” (http://www.jus.unitn.it/download/gestione/jens.woelk/20111028_1108U-5-98-DO-2.pdf, pp. 84-5)
  20. See http://famguardian.org/subjects/politics/thomasjefferson/jeff1030.htm (accessed on 24 September 2016)
  21. See Burt R.A. (1992), The Constitution in Conflict, Cambridge, Mass., London: The Belknap Press of Harvard University Press
  22. Due to its connection with the phenomenon and issue of slavery, this ruling is one of the most famous US Supreme Court decisions; for further bibliographic references, the tenor of the ruling, and a theory of the ruling’s causal power to contribute to the outbreak of the American Civil War, see Pehar, D. (2016), ‘Taney v. others (“Dred Scott” and American Civil War)’ (04 Mar), TransConflict: http://www.transconflict.com/2016/03/taney-v-others-dred-scott-and-american-civil-war-043/ (accessed on 24 September 2016).
  23. The quote in Stammen, T. (1995), ‘Antidemokratisches Denken,’ in: Die Weimarer Republik, Band 3Das Ende der Demokratie 1929-1933, München: Bayerische Landeszentrale für politische Bildungsarbeit (pp. 83-130), p. 100
  24. Should the reader need an assessment of the U 5/98-III, which is favorable to the decision and irreconcilable to the assessment offered here, I would recommend Bieber, F. (2006), Post-War Bosnia: Ethnicity, Inequality and Public Sector Governance, London: Palgrave, pp. 121-133.

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