Nummer 5 der „Blätter für Öffentliches Recht“ zum downloaden
Establishing a single Supreme Court in Bosnia and Herzegovina is still a matter of political testing how far the Entities can go with self-institutionalization into a governmental community. Preli minary analyses of this topic is out of the political discourse and is done through legally oriented procedure by: Nurko Pobrić, the analysis of the deficit of Dayton constitutional construct, Branko Perić, the analysis of “imposed judicial authorities” which has eliminated the absence of Dayton structure of the justice system. The first author advocates the establishment of a supreme court and shows the constitutional grounds as well as jurisdictional postulates for its institutionalization; the other author concludes that one Supreme Court is not required since currently the functioning of the system of justice is not a problem and therefore the existing system should be stabilized with the harmonization of entity laws. Both analyses deserve careful reading and even more careful comparison of opposing arguments. Reviewing the analysis in the context of jurisdictional practice and the demand of jurisprudence that has been presented in the previous issue of Volumes can give a legal answer to the question about needs, form and jurisdiction of a Supreme Court of BH.
The following topic is future of state property: two analyses by lawyers of younger generation (Gotovuša and Mehmedović) ofer reconstruction of history and political background of the dispute on state property and discuss dogmatic issue of review the constitutionality of the Law on the status of the state property on the territory of RS. The argumentation and quoted facts show that the policy which has been conducted on behalf of the entity RS is unambiguously anti-state, particularly in the dimension by which the RS consciously ignores and derogate the constitutional right of BiH. In this context, dogmatic relevant reasons are presented to show why the controversial law is not in order with Constitution. Factography and dogmatic basis of this analysis should not be suppressed in a public-law discourse, neither in the constitutional jurisdiction. I recommend them as established and dogmatically neutral analyses written by the lawyers of younger generation.
In addition to focusing on issues of constitutionality of entity legislation, this Volume also includes the analysis of legal absence in the budget adoption procedure of RS and the Law on Budget Execution of RS for 2011. (Hunček-Pita). The discussion is rounded by pointing out the weaknesses in the organization of health care legal system in BH (Mujkić), system of fiscal policy in BiH (Jusufbašić) and prison system (Ćerimagić). The analyses show that the legal regulation of several key segments of the state legal system of BH are in the function of complicating social and financial relationships, and therefore indirectly in the function of encouraging political unconstitutional practices and creation of a legal chaos from which may come out only certain political structure even with a positive balance.
Isn’t it an obvious proof that exactly “our profession” in Bosnia and Herzegovina, divided by ethnic legal intellect, has been deeply involved in the maintenance of this system and its legitimacy as a system of law? Nothing is more grateful than uncritical positivism that feeds platitudes about the layer as a “mouth” of the law in force in order to maintain in the life a normative system which establishes a network irrational legal rulings and moves the state away from its primary function: instead to service the citizens and take care of achieving social welfare, it becomes an obstacle, and institutional barriers to social progress.
The analysis from the region has totally different subject code. In Croatia a new Law on Administrative procedure is in force since beginning of 2010. This issue includes an analysis of administrative procedure reform (Rajko), with emphatic attention is on interesting new issues: mechanism of protection from other ways of treatment of public entities referred in Art. 156 of Law of Administrative procedure. Montenegro’s Constitution is the youngest in the region. But, the question is raised whether the constitutional guarantee of judicial independence and its concretization in the legislation of Montenegro is in consistent with generally accepted standards of the ECHR. The analysis of this issue (Ćupić) includes several problems that have universal meaning: the role of legislative in appointing judges, determining the jurisdiction and composition of courts, political dependency of judges, and issue of the constitutional language and the institutional framework for the realization of judicial independence.
Public Law Volumes will continue and we wish our readers a pleasant reading. I hope that the published analysis will encourage the established legal structures to critical examination of the whole legal system and also looking forward to well-based reactions.