KARAN: IS BiH LOSING ITS CONSTITUTIONAL IDENTITY?

BANJA LUKA, JANUARY 24 /SRNA/ – The constitutional identity of BiH is not a political or scientific phrase, but rather a constitutional-legal category encompassing a complex state structure, the division of competences, protection of entities and peoples, equality, parity, and consensus, emphasized constitutional law professor Siniša Karan in a column for SRNA.

SRNA is fully publishing Professor Karan’s column: Republika Srpska, by signing the Dayton Peace Agreement, accepted a complex confederal-federal BiH, contributing its statehood to a new, internationally verified constitutional order. The Dayton Peace Agreement was an act of state-law compromise, not the abolition of the statehood of Republika Srpska, which in that process gained international legal verification and a constitutionally guaranteed status as a state-forming entity. The Geneva and New York Principles, which preceded the Dayton, represent a pre-constitutional consensus and the source of the constitutional identity of BiH. They were incorporated into Annex IV of the Dayton Peace Agreement and form the essence of the constitutional being of BiH. Thus, the constitutional identity of BiH consists of the following principles and values: a complex state structure resulting in a strict division of competences, equality of entities and constituent peoples, consensus as the basis of decision-making, parity, and mechanisms for the protection of the vital interests of entities and peoples. Constitutional identity is an unchangeable category. It cannot be altered even by constitutional amendments, let alone by decisions of constitutional courts. However, thirty years after the Dayton, there has been a continuous, systematically designed process of undermining the agreed constitutional order. In this process, the Constitutional Court of BiH, together with the institution of the High Representative, has assumed the role of creator of a parallel, political constitution, contrary to the original Dayton text. Through their actions, the Constitutional Court and the High Representatives /who are not a constitutional category/ have ventured into a sphere that exceeds their competences, directly intervening in the internal constitutional structure of one of the state-forming entities. Such actions do not protect the Constitution, but reshape it. Through such conduct, the constitutional identity of BiH is being dismantled. Before the Dayton Peace Agreement, Republika Srpska existed as an independent state-forming political and legal community. The Dayton transformed its statehood, but did not abolish its constitutional-legal being. Any institutional action that systematically derogates the agreed principles represents an attack on the very essence of the Dayton-based BiH. The constitutional identity of BiH is not a political or scientific phrase, but a constitutional-legal category encompassing a complex state structure, the division of competences, protection of entities and peoples, equality, parity, and consensus. Undermining any of these pillars means undermining BiH itself as agreed in the Dayton. Preserving the Dayton Peace Agreement, as the framework of this constitutional identity agreed upon by the three peoples, is an obligation under international law and a prerequisite for the survival of BiH as a complex state community.