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Argument: Dayton entrenches ethnic divisions and impedes political progress

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Edin Šarcevic. "Ethnic Segregation as a Desirable Constitutional Position?". Bosnian Institute. 9 Dec. 2008 - In an interview with the independent Sarajevo weekly Dani, an eminent Leipzig law professor and B-H academician contests the ethnic terms in which matters of constitutional law are discussed in Bosnia today, and the legal status of the Dayton accords themselves.

Dani: Has the ethnicisation of Bosnia-Herzegovina’s constitution reached a point of no return?

Šarčević: I cannot say that for sure. But I am certain that the phenomenon we call the ethnicisation of constitutional law, and of the whole science of public law, prevents a rational dialogue about the path for constitutional reform in Bosnia-Herzegovina. Nationalist-minded political parties; the use of entity bodies to achieve expansionist aims and to cover up and legalise legally dubious business ventures; political demagogy at the level of state institutions that aims to prevent any progress towards the emergence of a functional state and institutions; blockade of the parliamentary system; the parallelism of ethnically based etatist goals - all this amounts to a dynamic in the direction of chaos. I speak here only about the entities; the diagnosis is even worse if we include also the cantons.

Edin Šarcevic. "Ethnic Segregation as a Desirable Constitutional Position?". Bosnian Institute. 9 Dec. 2008 - Could one say, nevertheless, that the constitutional transformation of an area is more a question of political will than of constitutional science, which in Bosnia’s case has led to successive postponements of necessary constitutional changes?

This is only partly true where Bosnia is concerned. Bosnia, after all, is not a typical case - it is an exception that cannot be subject to generalised rules. Normally, the constitutional concept is in practice harmonised with concrete social needs, but there is always a minimal standard that cannot be voided by politicians, by a political option or a constitution-maker. Some constitutions, such as for example the German one, declare it to be eternal. This is the standard of a citizens’ state that is closely linked to protection of individual rights and which positions the abstract man as the inviolable quantity within the political system. We call this minimum the state-legal assumption, or the foundation of citizen-based legal statehood. It is impossible without it to realise either the idea of procedural democracy or the effective protection of human rights. The rest is a superstructure that constitution-makers can change in accordance with their own political ideas.

What is characteristic of the Bosnian case is that it has suspended this basic premise, and by placing ‘constituent nations’ at the foundations of the state community has established a contradictory system that cannot function without generating conflict. This is visible not only in parliamentary practice, but also in political acts which, based on the same constitution, lead to contradictory conclusions. (I have written about this in my book Ustav i politika [Constitution and Politics], which came out immediately after the Dayton accords, as well as in more recent papers.) The existing system has practically abolished the theory of constitutional law, and has replaced the science of state law with an ideology of constitutional law. This process is continuing, with far-reaching consequences, as a by-product of Annex 4 [of the Dayton constitution]. As a result professors of constitutional law - i.e. lawyers who claim to be experts on constitutional law - have by and large become a specific hybrid of lawyers and politicians.

If you look at the products of public-law science which, for example, appear in the smaller entity [RS] in the guise of textbooks for constitutional law, you can see a heavy layer of ideology, which represents a special type of ethnicised constitutional law combined with practically negligible texts of dogmatic quality. Characteristic of this approach is the falsification of state-legal facts, and a proliferation of apodictic positions on what law should look like in order to be acceptable to an ethnic group, rather than on what law is and what a given constitutional decision looks like in the light of the standard interpretation of law. Generations of lawyers have been educated on these premises.

Similar tendencies exist also in the bigger entity [the Federation]. Although they are tempered there by the specific position of the capital city, and also by the fact that in this pluralistic entity constitutional law is conceived more objectively, more neutrally in ethnic terms, there is nevertheless a growing together of expert services and practical political needs. It remains noticeable that the experts who acted as advisors during the establishment of the Dayton system, or who were engaged immediately after its establishment (winning in exchange sinecures in public institutions), are becoming its critics in response to political need. What is specific of contemporary Bosnia is a destruction of legal science, to be replaced with political arbitrariness.

Following the failed attempts to reform Annex 4, I do not see any concrete proposals in circulation that can be described as coherent. We see only a sharpened political debate that represents extreme wishes and political blackmail rather than serious propositions. What I see is a kind of circus of nationalists, who are at least one hundred and fifty years out of date. The Serb demands, identified with RS, are reducible to a simple proposition: constitutional reform yes, but without reform of RS. There is even a demand for a written prior obligation to recognise RS as a permanent category before negotiations on constitutional arrangements can even begin. This has nothing to do with science, but represents in my view an attack on science, if not on common sense. There is also a Croat tendency very strongly reminiscent of a revitalisation of the ‘Croatian Community of Herzeg-Bosna’, which points towards a third - Croat - entity as one element in a tripartite state. There is also an unspecified inclination towards a citizen-based concept coming from the ‘Bosniak political bloc’, but I am not sure that this forms a clear political paradigm. Finally, there is the sole concrete draft: the citizen-based concept - which from a legal point of view is supported by a technically correct and highly permeable protection of collective rights (or interests associated with a territorial model of regions) - offered by the SDP. This draft taken as a whole is in harmony with the standard of the legal state, and represents - in the sense of state continuity - a model that I myself could defend, albeit with some corrections in regard to the nature and distribution of competencies, and regional demarcation.

The other demands belong to the category of failed projects, in which I would include the Dayton Annex 4. In this multi-ethnic and multi-confessional state - which for this very reason has to have an ethnically neutral or what might be called an ethnically ‘secularised’ sphere belonging only to citizens - they advocate all over again exclusive ethnic territories on which ethnic communities would exercise state functions through para-state mechanisms. It is obvious that segregation on an ethnic basis is introduced as a desirable constitutional condition, together with the role of a fifth column facilitating realisation of the interests of neighbouring states on Bosnian territory. It is a case of an inverted logic that uses constitutional mechanism to protect collective rights at the expense of individual rights and other ethnic groups. This path, alien to the democratic, legal-constitutional and legitimating standards of public law, is unacceptable to the modern state.

"The Dayton Agreement: A solution for Bosnia?". The Socialist Appeal Editorial Board. 27 Oct. 2005 - It now seems most likely that a deal will be put together which will, in effect, seal the de facto division of Bosnia on "ethnic" lines, under the hypocritical pretence of a "Federation." Such a solution will solve none of the problems, and has an entirely reactionary character.

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