No.
Date: 27.11.2006.
Report
Seminar “Constitutional Changes and Local Self-government in Bosnia and Herzegovina”
The Hall of the University of Sarajevo Senate
Obala Kulina bana 7/2, 71000 Sarajevo, Bosnia and Herzegovina
November 18, 2006, 14:00
Table of Contents
Introduction
Program
Participants
Introduction of participants
Constitutional Changes and Human Rights by Faris Vehabovic
Constitutional Changes and Local Self-government by Reuf Bajrovic
Constitutional Changes and Local Self-government by Vehid Sehic
Discussion
The Seminar in the printed media
Introduction
The seminar “Constitutional Changes and Local Self-government in Bosnia and Herzegovina” (the Seminar) was activity of the project “Platform Bosnia and Herzegovina: Constitutional Changes Contribution”, supported by Swiss Government and implemented by Human Rights Centre of the University of Sarajevo (HRC Sarajevo). More precisely, the Seminar was a part of the project activity called “Workshops on Constitutional Changes” which includes five one-day workshops designed to elaborate relevant issues related to local communities in the context of the on-going process of constitutional reform in Bosnia and Herzegovina.
The Seminar held on November 18, 2006, in Sarajevo actually covered first two workshops with the following topics:
· Constitutional Changes and Human Rights
· Constitutional Changes and Local Self-government
The aim of the Seminar, as well as the entire project, is to raise awareness among citizens of Bosnia and Herzegovina and to ensure their support and understanding of the constitutional reform process, as one of major conditions for development of Bosnia and Herzegovina. The objective is to enrich dialogue among the representatives of local self government in Bosnia and Herzegovina and to become involved in the process of adoption of constitutional amendments.
Program
14:00 – 14:15 Welcome note
Ms. Morgiana Brading, MA, Human Rights Centre of the University of Sarajevo
14:15 – 14:30 Introduction of participants
14:30 – 15:00 Constitutional Changes and Human Rights
Mr. Faris Vehabović, MA
15:00 – 15:30 Constitutional Changes and Local Self-government
Mr. Reuf Bajrović, MA
15:30 – 15:45 Coffee Break
15:45 – 17:15 Workshop „Constitutional Changes and Human Rights: Implications for Local Self-government“
Moderator: Mr. Faris Vehabović
Workshop „Constitutional Changes and Local Self-government“
Moderator: Vehid Šehić, Citizens Forum, Tuzla
17:15 – 17:30 Coffee Break
17:30 – 18:00 Conclusions and discussion
18:00 Cocktail
Participants
1. Bajazid Hadzic, Municipality Kljuc
2. Hazim Novalic, Municipality Gradacac
3. Hamdija Grosic, Municipality Bosanska Krupa
4. Igor Milinkovic, Law Faculty, University of Banja Luka
5. Irma Ceric, Municipality Novi Travnik
6. Miodrag Zivanovic, Faculty of Philosophy, University of Banja Luka
7. Mirhunisa Zukic, Association of Refugees and Displaced Persons of Bosnia and Herzegovina
8. Vehid Sehic, Citizens Forum, Tuzla
9. Zlatan Begic, Law Faculty, University of Tuzla
10. Enver Adzem, Municipality Gorazde
11. Zlatko Udovicic, Mostar City Council
12. Zvjezdana Radovanovic, City of Mostar
13. Azra Batlak, City of Mostar
14. Sabina Pstrocki, Association of Municipalities and Cities of the Federation of B-H
15. Amir Kupusija, Association of Municipalities and Cities of the Federation of B-H
16. Mujo Gec, City of Sarajevo
17. Enver Iseric, Civil Service Agency of the Federation B-H
18. Vesna Travljanin, Association of Municipalities and Cities of the Federation of B-H
19. Gorana Mlinarevic, Human Rights Centre of the University of Sarajevo
20. Morgiana Brading, Human Rights Centre of the University of Sarajevo
21. Reuf Bajrovic, ACIPS
22. Faris Vehabovic, Constitutional Court of Bosnia and Herzegovina
23. Miroslav Zivanovic, Human Rights Centre of the University of Sarajevo
Introduction of participants
At the beginning of the Seminar participants presented their observations as follows:
· The voice of municipalities has not been heard in the negotiations relating to the constitutional reforms;
· Local level is necessary for the functioning of any state;
· The dialog must take place on the whole territory of Bosnia and Herzegovina;
· Municipalities are interested in participations in debates on constitutional reforms;
· Although in some parts it refers to human rights the Constitution of Dayton clearly negates those rights in different provisions;
· The active participation in those dialogues is very important for the City of Mostar more so considering the fact that current Statute of the City of Mostar was imposed by the Office of the High Representative (OHR);
· For the Association of Refugees and Displaced Persons in Bosnia and Herzegovina it is important to participate in the discussions about constitutional amendments as they want to redefine Annexes IV, VI and VII of the Dayton Peace Accord because they are not being respected now and they are not securing any rights to the refugees, displaced people and returnees (especially in respect to the rights to work, right to home and right to medical care/health protection); it is necessary to secure the protection for the returnees;
· It is important to start from the fact that effective local self government means strong state;
· We are loosing on time a lot while remaining in the status quo position;
· Those who are living in the small municipalities insist on the fact that the life is not happening only in the big cities but the attention must be paid also to the small cities and towns;
· We have to build trust among the actors who want to talk as we even do not have that now.
Constitutional Changes and Human Rights
Faris Vehabovic, MA
The Constitution represents the framework for functioning of the state and all of us should behave within this framework.
The Constitution of Bosnia and Herzegovina is specific in many ways:
· It represents curiosity as it was written and signed by the neighboring countries;
· The Constitution is the part of the agreement that derogated the last democratic Constitution of Bosnia and Herzegovina (the Constitution of the Republic of Bosnia and Herzegovina);
· The Constitution was written in English and French and it was never officially translated to the languages of the peoples of Bosnia and Herzegovina; it was never published in the official gazettes (which is important for the law to come into force).
There are numerous different unofficial translations of the Constitution and consequently there are numerous positions which cast different lights on the obligations and the rights arising out of the Constitution and the position of the people in respect to what does and what does not apply to them. For example, in paragraph II.2 in the sentence “These shall have priority over all other law” the word “law” may be translated as the Law or law which entirely changes the meaning and poses the question whether the human rights have priority over all laws or law.
Through grammatical interpretation it is possible to come to the conclusion that the construction “over all other law” may be interpreted in such way that the European Convention in the legal system of Bosnia and Herzegovina takes the position above the entire legal system of Bosnia and Herzegovina, and consequently the Constitution of Bosnia and Herzegovina. This can be supported by the formulation of Article 3 item b of the Constitution (which reads as follows: «the general principles of international law shall be an integral part of the law of Bosnia and Herzegovina and the Entities», may be stated. Here the word law is interpreted as the legal system.
It is also the similar context in Article II.2. of the Constitution of Bosnia and Herzegovina. In Article I.2. of the Constitution is also stated “Bosnia and Herzegovina shall be a democratic state, which shall operate under the rule of law and with free and democratic elections” where the notion “rule of law” clearly means the well known notion of “rule of law” which is often being incorrectly interpreted as “rule of Laws” which is substantially closer to understandings of “continental-German” understanding of law, which would be acceptable if the Constitution of Bosnia and Herzegovina was not the typical representative of the Anglo-American approach to the drafting of the general acts.
The European Convention and additional 15 international documents listed in the Annex I to the Constitution are “enchained” in the Constitution of Bosnia and Herzegovina. Accessing to the Council of Europe Bosnia and Herzegovina accepted the obligations to adjust its legal system with the European Convention. Three basic principles of the Council of Europe are the rule of law, democracy and free and democratic elections. Those principles are built in the Constitution and should not be contested. However, the second level of the implementation of the institutions which could respond to the needs of the citizens and protect their human rights is something that is missing in the Constitution (as well as institutions which respond on time).
As our state wishes to become the member of the European Union, it has to entirely respect so called for freedoms of EU: right to freedom of movement of goods, people, capital and services. The problem here is that we have completely different interpretation of those freedoms from the interpretation present in the states members of the EU – the interpretation of those freedoms may be given only by the European Court of Justice.
There is discrepancy between normative part of the Constitution and other part which provides for the forming of the institutions and decision making in those institutions. The Constitution only provides for two entities. This fact should not be contested and it is not being contested during negotiations where the regionalization of Bosnia and Herzegovina is also being discussed. However, the competences between regions, entities and state are being disputed.
The state is the only one that has international obligations and it is the only one responsible in the international events: for example the decision of the ECHR in the case of Jelicic obliges the state (although Human Rights Chamber previously established the obligations of the Republika Srpska).
The state must have jurisdiction and instruments to respond to its international obligations.
It is also interesting to mention Article III.5. (a) of the Constitution which reads as follows:
“5. Additional Responsibilities
(a) Bosnia and Herzegovina shall assume responsibility for such other matters as are agreed by the Entities; are provided for in Annexes 5 through 8 to the General Framework Agreement; or are necessary to preserve the sovereignty, territorial integrity, political independence, and international personality of Bosnia and Herzegovina, in accordance with the division of responsibilities between the institutions of Bosnia and Herzegovina. Additional institutions may be established as necessary to carry out such responsibilities.”
Fulfillment of the responsibilities lies exclusively on the state and if it wants to be part of the international community it has to fulfill those obligations, otherwise it will loose its subjectivity. Original competences are not within the entities but within the state; the state transferred its competences to the entities and it may retrieve them if and when needed.
Only one article in the Constitution may be seen as relating to the local self government. That is Article II.6 of the Constitution which provides for all to respect the European Convention; this is only indirect link between Constitution and local self government.
There is the gap between principles of the Constitution and organizations which are established to implement the Constitution (the content and the democratic principles are important).
Democratic pluralism is still not present on the political scene in Bosnia and Herzegovina; we rather can talk about ethnic pluralism (as everything follows the ethnic key). The Constitutional Court adopted the decision in which it stated that political party that participates in elections has to have representatives of all ethnic groups on its election lists as they are potential parties which could be elected for the public duties. Unfortunately this has not been respected and the question may be even posed whether anyone else read the decision except for the people it directly related to.
Relation between the Constitution and European Convention: European Convention is constitutional principle, it is also additionally signed separately – for this reason the question what is older (Constitution or European Convention) arises – this question is very important for the discussions on the constitutional amendments. European Convention contains the principles that are more or less clear. European Convention and the Constitution are international agreements; the Constitutional Court decided on this question and it pronounced itself not competent (not having jurisdiction to decide on this issue) – this does not mean a lot as the ECHR has jurisdiction over this issue.
Constitutional Changes and Local Self-government
Reuf Bajrović, MA
There is a theoretical discrepancy in relation to the local self government – in the previous system we used to have the right to local self government. The right to direct and indirect participation of the citizens in the local self government occurs through representatives of the local self government.
In 2000 we acceded to the European Charter of Local Self Government, however there has not yet been made any study on fulfillment of the obligations from the Charter.
Local self government is in schizophrenic situation as the municipality development plans does not correspond to their budgets – the responsibilities such the programs for employment, social security programs and even the education (building of schools for example) are delegated to the municipalities, although there is no anticipated funds for those purposes in the municipality budgets. The municipality officials are being delegated all burdens which the entities or the cantons do not want to finance (refugees, social security) even though the funds are not provided. According to the Charter, the municipalities should not have the mandate for anything they do not have funds for.
The municipalities have to be advised on the issues relating to them. It is hard situation for the officials in the municipalities as at the same time they have to satisfy the needs of the citizens and to implement the politics of their parties. For further readings see Zdravko Miovcic et al. “Analysis of the situation in the local government and self-government in Bosnia and Herzegovina”, May 2005.
Note! Upon the proposition and request of the participants it was decided that the planed two working tables be joined as the topics are related and all participants are interested to participate in both discussions.