Address of the President of the Republic of Srpska Željka Cvijanović at the special session of the National Assembly of the Republic of Srpska:
Distinguished Chairman of the National Assembly of the Republic of Srpska,
Speaker of the Council of Peoples of the Republic of Srpska,
Prime Minister of the Republic of Srpska,
Distinguished Serb member of the Presidency of BiH,
Dear citizens of the Republic of Srpska,
Bosnia and Herzegovina can be said to be this or that way, but what is certainly true about her, is that she is in a permanent crisis. And even the circumstances, under which this special session of the Republic of Srpska National Assembly was convened, represent an instance of political crisis. Just as we thought the political blockade, deliberately caused by SDA, that, for 14 months after the elections, prevented the formation of BiH-level authorities in keeping with the will of the citizens of the Republic of Srpska, but also of the citizens of the Federation of BiH, was ending, came a new crisis triggered by a decision of the Constitutional Court of BiH related to agricultural land in the Republic of Srpska.
When I spoke to foreign representatives about this procrastination in the formation of authorities at the level of BiH, most of them “rooted” for the authorities to be formed, because it would mean at least some progress along the European path, or at least some, albeit lean, credibility of the state, but, there were also those who said that other matters were more important than forming the authorities, and even that it was politically legitimate not to form the authorities.
All right, I accept that democracy disposes of different tools and we choose which to apply. But now that it is the Serb representatives who decided not to take part in the decision-making process at the level of BiH, to prevent the throughput of decisions when they have to vote for procedural reasons, because otherwise, someone else would decide in their stead, I expect the same foreign representatives to say that it is also politically legitimate, and that this, too, is one of those democratic tools, because it is. And I expect that they abstain from criticising us now, as they did not criticise others.
A lot could be said of why BiH is as it is – trapped, uninventive, non-creative, unable to look left or right, forwards or backwards in search of an opportunity to do good to the citizens of the two entities, of why it is incapable of communicating with its neighbours, except hysterically, of why it needs to act out an important state, while being unable to do anything to benefit its citizens.
In short, she never even got a chance to live the life of a normal state, and there are many reasons. I dare say that she could have become a more or less successful society, but she did not. Today’s reality is such that the Serbs are frustrated by the permanent efforts towards abolishing their identity and forcibly diminishing the constitutional capacity of the Republic of Srpska. Croats are frustrated by the fact that they cannot secure their representation in accordance with the constitutional principle of protection of collective rights, because, on several occasions now, it was the Bosniaks who elected the Croat member of the Presidency of BiH. Bosniaks are dissatisfied because BiH is not whole and theirs. She may have been promised to them, but they did not get her. It is true that many helped them obtain her later, because the decisions of the High Representatives earlier and subsequently the decisions of the Constitutional Court of BiH sought to make BiH a state that would be civic in form, but essentially Bosniak in fact.
The recently adopted SDA Declaration is exactly what this is about. The reactions of the foreign factor were startlingly mild, and they even took a few days to come forward with any reaction, weighing the words so as not to be even closely as harsh as those that they usually direct at the expense of political parties or institutions of the Republic of Srpska. The SDA Declaration is riddled with anti-Dayton statements, and the foreigners’ explanation was that it is an ordinary political pamphlet. OK, but I cannot help but ask them, how come declarations of the Republic of Srpska parties are not ordinary political pamphlets to them, but they regularly punish politicians based on such pamphlets?
Hence, BiH is a highly unfortunate society, because it did not get even the slightest chance of developing as a true multiethnic society willing to turn traumas from the past into opportunities of the future. It would be fair and proper to determine the responsibilities and finally say how much did each of us – foreigners, Bosniaks, Serbs and Croats – contribute to the mess in which BiH is now…
Today’s special session of the Republic of Srpska National Assembly was convened precisely to give us all, as the Republic of Srpska, the opportunity of saying how we feel about this, especially in light of the latest decision of the Constitutional Court of BiH and the fact that there have been permanent efforts in the past two and a half decades to abolish the Republic of Srpska, her identity, her institutional capacity, as well as the associated level of competences guaranteed by the Dayton Agreement and all of its annexes, in particular by Annexe IV, the Constitution of BiH.
We should recall that in November 2019, the National Assembly considered the Report on the Unconstitutional Transformation of the Dayton Structure of BiH and the Impact on the Position and Rights of the Republic of Srpska in BiH. Based on the Assembly’s conclusions, the Republic of Srpska Government drafted an Action Plan for the Protection of the Constitutional Competences of the Republic of Srpska, along with an analysis of the ways competences of the Republic of Srpska were transferred to the level of BiH, and a proposal of measures to prevent any further transfer of competences, as well as measures to restore those powers that, from Dayton to date, were in various ways transferred to the level of BiH. Therefore, the focus of the discussion of that Assembly session was the illegal subversion of the Dayton Agreement and of the Constitution of BiH, and the position of the Republic of Srpska and the Serb people within this illegally transformed BiH. It is clear that these anti-Dayton operations did not make BiH a more successful state, but quite the contrary brought it into a completely opposite situation.
We see the latest decision of the Constitutional Court, challenging Article 53 of the Republic of Srpska Law on Agricultural Land, as an integral part of the process of derogation of the existing constitutional system, and of the deconstruction of the Dayton foundations on which BiH rests. The damage caused by such moves to the Republic of Srpska, and therefore to the functioning of BiH, is enormous, which is why we believe it is necessary to urgently stop the process of unconstitutional action of certain institutions at the level of BiH and return to the letter of the Constitution and constitutional provisions.
This decision has not yet been published, but it is already alarming enough that, according to the court’s statement, it provides that “the regulation of state property matters is the exclusive jurisdiction of BiH.” This means that the judges of the Constitutional Court of BiH have completely neglected the fact that Article III of the Constitution of BiH, which they are obligated to protect, explicitly enumerates the competences of the common institutions at the level of BiH, and none of them even remotely relates to state property. The same article of the Constitution also clearly states that “All governmental functions and powers not expressly assigned in this Constitution to the institutions of Bosnia and Herzegovina shall be those of the Entities.” Contrary to these deliberate overlooks of the Constitutional Court, there is a clear constitutional and legal fact that the Dayton Peace Agreement establishes a territorial principle that attributes property to the territorial unit on whose territory it is located – which means, the Entities.
Furthermore, I would like to remind you that Amendment 32 to the Constitution of the Republic of Srpska from 1998, amending Article 68 of the Constitution of Srpska, provides that the Republic of Srpska shall, inter alia, regulate property and contractual relations and protect all forms of property. Having in mind that the Constitutional Court of BiH has previously determined that this provision of the Constitution of the Republic of Srpska is in accordance with the Constitution of BiH, and that the Venice Commission confirmed it in its Opinion, the only conclusion that can be drawn is that the Constitutional Court of BiH did not violate only the Constitution and legal system of BiH, but also its previous decision.
In order to get a better understanding of the property and legal matters in BiH, there are several things we need to note. First of all, that in 2001 an international Agreement on Succession Issues of the Former SFRY was concluded in Vienna, which was subsequently ratified in all signatory states, and that until March 2005, this property in BiH was unimpededly managed and disposed with by the competent authorities of the Republic of Srpska and of the Federation of BiH – in the Republic of Srpska, as we already mentioned, on the basis of Article 68 of the Constitution of the Republic of Srpska, which provides that Srpska regulates and ensures property and legal relations and protects all forms of property.
In March 2005, the High Representative imposed three laws temporarily prohibiting the disposal of state property – of BiH, of the Federation of BiH and of the Republic of Srpska, defining, when it comes to Srpska, that state property is considered to be:
Immovable property which belongs to BiH pursuant to the international Agreement on Succession Issues, and immovable property for which the right of disposal and management belonged to the former SR BIH before 31 December 1991, which is considered to be owned or possessed by any level of government or public organisation or body in the Republic of Srpska
In contrast, at the time, the High Representative did not pass a Law on the Temporary Prohibition of Disposal of State Property of the Brčko District, but with assistance of the supervisor, the Brčko District passed the Law on Public Property and all property, except privately owned property, came to belong to Brčko, which indicates a different and extremely inconsistent approach by the High Representative to the same legal matter.
It was envisaged that these imposed laws would remain in effect until the entry into force of a law that would regulate the implementation of criteria to be applied for determining what property would be owned by BiH, the FBiH and the Republic of Srpska, on the basis of which, the Council of Ministers and governments of both entities would conclude an agreement on the distribution of those assets as required by all levels of government.
To this end, already by 2004, the Council of Ministers formed a “Commission for State Property, for the Identification and Distribution of State Property, the Specification of Rights and Obligations of Bosnia and Herzegovina, the Entities and the Brčko District of BiH in the Management of State Property.” But since the Commission failed to harmonise the text of the law in the first five years, so it was not even delivered to the Council of Ministers for adoption, the National Assembly of the Republic of Srpska adopeted the Law on the Status of State Property Situated in the Territory of the Republic of Srpska and Under the Disposal Ban, but the High Representative, by his Order dd. 5 January 2011, suspended the application of this Law until the entry into effect of a final decision of the Constitutional Court of Bosnia and Herzegovina on the said Law.
At the request of Sulejman Tihić for review of the constitutionality of the Law on the Status of State Property Located in the Territory of the Republic of Srpska and under the Disposal Ban, the Constitutional Court found “that the Republika Srpska lacks a constitutional competence to regulate the subject-matter of the Law on the Status of State Property Located in the Territory of the Republika Srpska and under the Disposal Ban” (Decision U-1/11), but at that time, the Constitutional Court did not decide who in fact owned the property. Thus, the Constitutional Court did not explicitly say that the Republic of Srpska did not own the property, but it forbade it from managing it, which could lead to the conclusion that the Constitutional Court intended to declare the property of the Republic of Srpska as property of BiH. In explaining its decision, the Constitutional Court, inter alia, stated that the High Representative noted that the Constitution of Bosnia and Herzegovina contains no express provisions on how state property must be shared among different levels of government, as confirmed by the Venice Commission in its Opinion.
On the other hand, the Parliamentary Assembly of BiH has never adopted any regulations in the field of property relations. All regulations in this field, according to the principle of division of powers as established by the Constitution of BiH, are in the exclusive competence of the Entities, for example the Law on Real Rights, the Law on Survey and Cadastre and other regulations in this field. With that in mind, the question is how could a court make a decision without substantive regulations? Furthermore, this decision fully contravenes the decision of the same court No. U-5/98 (on the appeal of Alija Izetbegović), which merits that the Republic of Srpska, i.e. the Entities, have exclusive jurisdiction according to the principle of distribution of powers to regulate property and contractual relations in accordance with Article 68, paragraph 6 of the Constitution of the Republic of Srpska. It is clear that the Constitutional Court of BiH decided differently in two cases on exactly the same subject matter, since it first confirmed that the Republic of Srpska owns the land, and then restricted that right. Where there is an intention to restrict a right, there is also an intention to abolish it.
In terms of calls for legal continuity, it should be noted that Annexe IV of the Dayton Agreement, the Constitution of BiH (in Article 1) renamed the earlier Republic of BiH into Bosnia and Herzegovina, which is its new official name without any designation, and provided that it “shall continue its legal existence under international law… and with its present internationally recognised borders”, BUT with its internal structure completely modified in accordance with the new provisions, i.e., the provisions of the Dayton Constitution. This clearly indicates that there is no internal legal continuity since BiH has a completely new internal structure.
This internal structure is regulated in such a way that the competences of BiH are explicitly listed, while all other governmental functions and powers not explicitly assigned to the institutions of BiH are those of the Entities. The matter of property regulation was not explicitly assigned to the institutions of BiH, which means that this right belongs exclusively to the Entities, as regulated by Article 68, paragraph 1, item 6 of the Constitution of the Republic of Srpska. And, since the High Representative passed three laws banning the disposal of property in 2005, he grossly violated the Dayton Agreement, i.e., the constitutional principle that Entities own their territories and that by virtue of their constitutional jurisdiction they have the right to regulate property and legal relations and dispose of their property.
Furthermore, contradictory decisions of the Constitutional Court of BiH, that affirms this right in one, and then restricts the same right in another decision, confirm the violation of the constitution by the very institution that is supposed to be its protector, but also puts citizens and institutions in a state of legal uncertainty. The credibility of the Constitutional Court of BiH was manifestly shattered by its inconsistencies and contradictory decisions, and by the fact that it illegally appropriated for itself the role of creating the Constitution, rather than interpreting it and protecting constitutionality, as well as by the admission of one former foreign judge who said that before bringing their decisions they had to consult with the High Representative.
In order to deny us the right to speak about these impermissible deviations, they usually tell us, instead of presenting an argument, that the Constitutional Court of BiH and the High Representative are categories contained in Dayton. True, but the fact that the BiH Constitutional Court is a Dayton category does not entitle it, just as it does not entitle the High Representative, who is also a Dayton category, to violate the Dayton Agreement and the Dayton Constitution, which they have repeatedly done. Citizens can then rightly ask why anyone else should be obligated to respect the decisions of such a court?
It is quite clear that the Constitutional Court of BiH, by challenging Article 53 of the Law on Agricultural Land of the Republic of Srpska, further complicated the situation with regard to property and the already complicated relations in BiH. The decision to exclude agricultural land from the ownership structure of the Republic of Srpska is unenforceable.
We have heard statements by Bosniak political leaders and officials that we have the obligation of implementing decisions of the Constitutional Court of BiH. This is quite hypocritical on their part, knowing that in the Federation of BiH there are dozens of unimplemented or just partially implemented Constitutional Court decisions, both at the Federation and cantonal levels.
On the other hand, we often hear from the very same politicians that the Dayton Accords are not a buffet from which anyone can take what they want. And this is hypocritical, too, because it is precisely they who tend to help themselves from this buffet. For example, Annexe II of the Dayton Agreement regulates the matter of the Inter-Entity Boundary Line between the Republic of Srpska and the Federation of BiH and leaves the possibility of correcting the boundary 50 meters to the left or to the right of the actual IEBL by a subsequent agreement between the Entities. Only 3% of the boundary has been processed, and we know how many citizens living in the IEBL area have had property and administrative problems because of this. This issue has never been resolved because of a persistent blockade by Bosniak parties from the Federation of BiH, even though the Republic of Srpska Government has repeatedly taken steps and initiated the implementation of this Dayton obligation.
Ladies and Gentlemen, distinguished deputies,
Today’s BiH was created by an international treaty as a highly decentralised community of two equal Entities. By virtue of the Dayton Agreement, the Republic of Srpska, which was proclaimed on 9 January 1992, which means before the war, and the Federation of Bosnia and Herzegovina (then under a different name), which was created on 18 March 1994, i.e., during the war, transferred some of their rights and obligations to the common institutions.
Sovereignty, as the highest decision-making right, remained in the Entities, that were established before the common state was, and which was formed by their consent at the end of 1995. Until then, there was no BiH within the current framework, and the one that existed then did not have any of the three fundamental criteria of statehood – it had neither population, nor territory, nor any sovereign power within the borders to which it aspired. The extent to which the Republic of BiH was non-existent back then, thus without any legal continuity into the Dayton BiH, is best illustrated by the Decision of the Constitutional Court of the Republic of Bosnia and Herzegovina No. 47/92 of 8 October 1992 which declared “the so-called Republic of Srpska as annulled.” If there were internal legal continuity of the Republic of BiH, then the “annulled” Republic of Srpska could not have been one of the negotiators and signatories to the Geneva and New York principles, nor of all 12 annexes to the Dayton Agreement, which she was.
Therefore, today’s BiH was formed because the Dayton Agreement established a completely new internal structure of the common state, election and decision-making systems and a new way bodies work, in accordance with the Geneva and New York principles from September 1995. The Republic of Srpska gave its consent to the establishment of such new state only because she – as the Republic of Srpska, was internationally verified by the Dayton Agreement as an equal Entity and because of the numerous constitutional guarantees that safeguard equality and equal rights of the constituent peoples at the level of BiH. Had the representatives of the Republic of Srpska in Dayton known that the process of the Agreement’s deconstruction and the unconstitutional usurpation of Srpska’s rights would start right after the signing of the Agreement, it is quite certain that the Agreement would have never been signed, which means that a common state would never have been formed.
This process of stripping away the Republic of Srpska’s rights has been going on for years due to pressures from the international factor and illegal acts, or legal violence, by the High Representatives. After numerous criticisms of these undemocratic practices, a new method was resorted to – the role of the High Representative was gradually taken over by the Constitutional Court of BiH. It is a paradoxical situation that an institution whose primary task is to interpret and protect the Constitution has turned into the flagship of anti-Dayton and anti-constitutional activities in BiH. The Constitutional Court arbitrarily replaced its role of protector of constitutionality with the role of creator of the constitution, adjudicating politically and making decisions that have no real legal bases.
On the other hand, the sovereignty of BiH is best illustrated by the fact that there are still three foreign judges sitting in the Constitutional Court, who often play a decisive role in the decision-making process and form a voting bloc with Bosniak judges who make decisions that contravene the existing constitution. Therefore, foreign judges serve the function of outvoting, the function of changing the Dayton constitutional arrangement, the function of limiting the sovereignty of BiH, the function of preventing the ownership by domestic authorities over domestic processes, the function of deepening mistrust among peoples and distrust in BiH, and thus in the function of dissolving the existing state.
This is the picture of today’s BiH, which no longer rests upon mutual agreement, respect and co-operation between its peoples, but on permanent attempts of just one people to impose their will upon everyone else with the help of foreign nationals. Without legal certainty and legally made, rather than politically based, decisions of the judiciary, a stable and orderly system cannot be established. It is simply not possible to speak of the rule of law, one of the fundamental achievements, not only of the European Union, but also of today’s modern civilisation in general, while at the same time derogating the highest legal act of the country.
In essence, the Constitutional Court’s activities as an instrument of political Sarajevo have undermined the very foundations upon which BiH rests, and, combined with earlier measures by the High Representatives have brought Bosnia and Herzegovina into a near-hopeless situation. Permanent crisis and dealing with the same status issues due to persistent assaults against the Republic of Srpska’s constitutional competences deprive us of the energy to carry out important regular jobs and reform activities, and irreversibly destroy the hope that BiH can survive on the grounds of equality of all her peoples or mutual respect between them. The announced appeals regarding the Law on Real Rights, or those related to the name of the Republic of Srpska, point to a new crisis, or, better said, an endless crisis. That is why it is important that our institutions have a clear answer.
As President of the Republic of Srpska, I felt obligated to convene a meeting with representatives of institutions and with all political parties to hear their views, since also this decision of the Constitutional Court was inconsistent and unconstitutional.
In a normal country, where the Constitutional Court works in a normal composition and operates normally and within the Constitution, protecting constitutionality, there is no question of whether its decisions should be enforced. But, in a country where a political official, such as Bakir Izetbegović, admits that the Constitutional Court is a lever of Bosniak politics and generously “offers” to give up on the court, in exchange for the Republic of Srpska renouncing to the Entity voting mechanism, is a brutal mockery, both of the judiciary and of the Constitution. It is also brutal to remain silent, as did the international factor in BiH, to such a dangerous appropriation of the Constitutional Court as a political instrument of one ethnicity or one political party.
But, we have grown used to foreign representatives, in their bias, keep persistently silent about everything that Bosniak politics do, but constantly shout at anything done by the Republic of Srpska. That is why BiH today is a state governed by mistrust between peoples, but also a state in which the Serbs, and increasingly the Croats, no longer believe in the good intentions of the international factor. Do these things need to be changed – whether they are a realistic image or just a perception? Yes, they need to, undoubtedly! But these changes would imply a sincere dialogue, which has never taken place; and whether it will, does not depend upon us, but on the Bosniak politicians and foreign representatives.
It will not help this country at all that deep problems are individualised and personalised, rather than having the causes treated. Nor will it help if the view is imposed that reform is merely about the transfer of competences, rather than the treatment of substance.
Therefore, we, too, would like to live in an environment where court decisions are respected and citizens of both the Republic of Srpska and of the Federation of BiH enjoy legal certainty. But, for this, courts need to operate within the framework of the Constitution and the law, not to make unconstitutional decisions or be influenced by domestic or foreign policies or politicians.
Deviations are present not only with respect to the Constitutional Court of BiH, but also within the ordinary judiciary. A country where it is possible for a domestic politician or a foreign ambassador to inquire about the status of an individual case, or even to demand a case be initiated against someone, is doomed. The engagement of foreign policies to uphold such a situation is also doomed. A state in which people of one ethnicity are tried for war crimes under a milder law, from the times of SFRY, which was in effect at the time when the acts were committed, while people of another ethnicity are tried for the same acts of war crimes, under other, more severe provisions, enacted years after the war ended, i.e., by retroactive application of the law, shows the abyss of the judiciary. When I talked to international representatives about this, they told me after years of such ill practice: “Well, we are fixing it now.” Yes, but what about those who have been severely harmed by the retroactive application of the law, which damage was never corrected, and probably will never be?
Thus, this experimental and politically motivated judiciary has caused immeasurable damages to relations between peoples in BiH, to the reputation of the international factor in BiH, and to the credibility of BiH itself. Let us recall the structured dialogue on judiciary reform launched at the initiative of the European Union 10 years ago. It was suspended because SDA and OHR, in their support, so wanted. The reason for the degradation, and later the complete suspension of this process, was nothing but mere manipulation – the intention to, in the name of protecting the state, actually protect the whole corpus of unlawful decisions imposed by high representatives who established a judiciary system completely outside the Constitution of BiH.
When we say that something is unconstitutional, then we get accused of trying to destroy the state. When we say that we want to reform what we see as illegal and unconstitutional in order to make it legal and constitutional, we are again accused of allegedly destroying the state just because the OHR and SDA do not want such reforms. When we say that the EU should be bolder and insist in this country on such arrangements that they already have in their own countries, rather than defend what is an experimental hybrid, or when we say that we want the co-ordination mechanism that they insisted upon, while Bosniak parties persistently wanted to bypass it, then we stand accused of being against European integration. I am more in favour of European integration than many politicians who repeat empty phrases while sitting at international chaises and purposeless fora, but I know that to achieve it, we need to roll up our sleeves and implement tough but JUSTIFIED reforms that have a clear and visible, not a hidden, agenda. Unfortunately, reforms so far have served more the purpose of centralisation rather than the purpose of strengthening our capacities to tackle the challenges that EU membership will present. The functionality of the state is secured by political will, not by violent snatching of powers.
We want peace, stability and to preserve the powers and the constitutional capacity of the Republic of Srpska. This is the framework of our policy. Such BiH, in which it is possible to fully implement and exercise the interests and rights of every ethnicity, of both Entities, but also of BiH herself, is not a problem for us. What is disputable for us is the snatching of our jurisdiction and competences that takes place under the cloak of allegedly creating a more functional state, while, in essence, the state finds itself in a worse off situation and becomes sicker because of such interventions. So there is room to improve this kind of atmosphere, but it is not difficult to assume that Bosniak politicians will remain unwilling to take this chance as long as they know they can rely on the foreigners – be it OHR, which has long been perceived as the “legal department of SDA” or foreign judges in the Constitutional Court of BiH who represent a voting machine in favour of SDA’s political ambitions and the creation of a unitary BiH, against which are two of the three constituent peoples.
The National Assembly is the heart of the democratic, political and institutional life of the Republic of Srpska and I believe that this Assembly will protect, pursuant to its constitutional powers, the interest of the Republic of Srpska.