—Benjamin Nurkić, Ph.D. student, Faculty of Law, University of Tuzla
The problem of implementing the rule of law in Bosnia and Herzegovina (BiH) remains the main problem after the signing of the Dayton Peace Agreement (DPA). However, the DPA created the conditions for ethnic discrimination, as it was determined by the rulings of the European Court of Human Rights (ECtHR) in cases Sejdić and Finci v BiH, Zornić v BiH, Pilav v BiH, Šlaku v BiH and Pudarić v BiH.[1] At the same time, the BiH Constitution created the conditions for the implementation of the rule of law. The first article of the BiH Constitution, defines BiH as “(…) a democratic state, which shall operate under the rule of law and with free and democratic elections.”[2] Furthermore, the BiH Constitution protects human rights in the most extensive possible manner.[3] The European Convention on Human Rights (ECHR) is also an integral part of the BiH Constitution and has “priority over all other law”.[4]
Furthermore, “(…) all courts, agencies, governmental organs, and instrumentalities operated by or within the Entities”[5] must apply and conform to the human rights and fundamental freedoms that are defined in the ECHR. However, in everyday life, courts, agencies, and governmental authorities do not protect human rights in the way it is declared in the BiH Constitution. The Priebe Report states: “(…) in BiH the lack of an appropriate regulatory framework is not always the most pressing issue. In many areas, legislation in line with European and other international standards is already in place. Modifications in legislation are not always required to address persistent problems and shortcomings. Instead, there is a considerable gap between legislation and practice which needs to be bridged. There might be different reasons for such a gap. The positivist and formalistic behavior of many officeholders at all levels often appears as a real obstacle to proper implementation.”[6] So, the BiH Constitution should be amended to address the discriminatory articles in the Constitution, but another problem is how to implement the rules that already protect human rights.
Therefore, the main problem in implementing the rule of law in BiH is not the constitution. From my point of view, the legal culture that has developed in the long history of BiH is a culture of rule by law and not the rule of law.[7] BiH was a part of the Ottoman Empire, Austria-Hungary, the Kingdom of Yugoslavia, and the Socialist Federal Republic of Yugoslavia. In all these former states, with the exception of Austria-Hungary, the legal system was established as a rule-by-law system.[8] Therefore, throughout its history, BiH has always been part of states that were under a rule-by-law.[9] Consequently, a culture of the rule by law has developed in BiH. So, rules which protect human rights in the BiH Constitution are not being implemented in daily life, because courts and other institutions in the BiH legal system are functioning in accordance with the rule by law principle. The basic objective of all institutions in BiH is mere compliance with the laws, while the protection of human rights, which is a constitutional obligation of all institutions in BiH is being neglected, which can be explained by the lack of legal culture that would support the rule of law. However, BiH needs time to establish the rule of law culture, because without it, the rule of law is just a dead letter. Therefore, alongside the constitutional reform, BiH must implement a reform that establishes a culture of the rule of law. The question is how to transform the rule by law tradition into the rule of law culture? From my standpoint, the key to solving this problem lies in education and not only in legal education. BiH needs to push through reforms that will bring about a paradigm shift in the understanding of the law, state, and the relationship between these two concepts. The State and laws should serve the citizens. Unfortunately, BiH has a short history of enforcing the rule of law, and BiH citizens still do not understand the importance of the rule of law. Therefore, future reforms in education must be geared towards creating a culture of the rule of law. This means that the future reformed educational system should educate future citizens who will know how much the rule of law is essential and who will know how to demand the rule of law from courts and state institutions.
In this sense, office-holders and judges must comprehend that their role is first and foremost to protect the interests of the people. For instance, as mentioned earlier, all courts and institutions in BiH must protect human rights. But in practice, the main focus of courts and state institutions is mostly mere law enforcement. Protecting human rights, in practice, is the task of the Constitutional court of BiH, while other institutions limit themselves to mere law enforcement. This brief presentation shows the necessity of establishing the rule of law culture in courts and state institutions. Because that is the only way to exploit all possibilities that BiH Constitution offers. Thus, if BiH wants to attain the rule of law standards, besides constitutional reform, it also needs to switch the rule by law tradition with the rule of law culture. Until then, BiH will be a state of the flawed rule of law in the Constitution, and with rule by law legal tradition.
Suggested citation: Benjamin Nurkić, The Rule of Law in Bosnia and Herzegovina, Int’l J. Const. L. Blog, Jun 16, 2022, at: http://www.iconnectblog.com/2022/06/the-rule-of-law-in-bosnia-and-herzegovina/
[1] Banović, Damir, Saša Gavrić, Mariña Barreiro Mariño (2021), The Political System of Bosnia and Herzegovina, Springer, Cham, pp. 4-9.
[2] The Constitution of Bosnia and Herzegovina.
[3] Chandler, David (2000), Bosnia Faking Democracy after Dayton, Pluto Press, London and Sterling, p. 92.
[4] The Constitution of Bosnia and Herzegovina.
[5] Ibid.
[6] Expert Report on Rule of Law issues in Bosnia and Herzegovina, para 20.
[7] On rule by law tradition see Dyzenhaus, David (2021), Thomas Hobbes and the Rule by Law Tradition. 261-277. The Cambridge Companion to the Rule of Law, ed. Jens Meierhenrich, Martin Loughlin. Cambridge: Cambridge University Press.
[8] For example see Rubin, Avi (2017), “Was there a rule of law in the late Ottoman Empire?“, British Journal of Middle Eastern Studies, pp. 123-128.
[9] The difference between the rule of law and rule by law see Tushnet, Mark (2014), ˝Rule by Law or Rule of Law?˝, Asia Pacific Law Review, 22(2), pp. 79-92.
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