The specific constitutional framework of Bosnia and Herzegovina (BH) and the governmental structure which arises out of it has provided for a constant need for a balancing act in day-to-day politics. Considering the fact that each legislative and executive decision at the state and entity level must be in accordance with the interest of all three constituent peoples (Bosniacs, Serbs and Croats), the decision making process can be slow and inefficient. When the element of intentional obstruction is brought into the equation, then the results on the overall socio-political balance in the country can be devastating.
Power struggles and gridlock are not a foreign factor in the politics of BH, and their effects have significantly slowed down the process of the accession and integration of BH into the European Union. The question then becomes whether the mechanisms in place for the protection of each constituent people within the country are permanently preventing the initiation of attempts for the more progressive approach in the mutual interest of the entire country and all its citizens? It seems that fragmented regulation and scrutiny of the same issues at the state and entity levels have lead to the decrease of adherence to the constitutional powers delegated to the state government bodies.
A clear example of this effect is the Referendum held in Republika Srpska (RS) at the entity level. This event has caused uproar both at the domestic and international level. Namely, after the legislature of RS had declared January 9th as the Day of Republika Srpska, this declaration was brought before the constitutional court of Bosnia and Herzegovina by the Bosniac member of the tripartite Presidency (the state executive branch) for judicial review. The constitutional court has declared the decision unconstitutional. The reasoning was the lack of consent by representatives of the other two constituent peoples in RS to such a decision. The President of Republika Srpska immediately made it clear that this decision of the Constitutional court is unacceptable and that it will not deter his commitment to proceeding with the initial decision. Following the statements, the referendum of September 25, 2016 was announced. The constitutional court responded by issuing an order to discontinue the implementation of the referendum on this issue.
However, the referendum took place regardless of the decision and order of the constitutional court. This was the first referendum held on the territory of BH in its post-Dayton history. According to the results from 71 percent of the counted votes, 99.79 percent of the votes were in favor of the holiday. The turnout was estimated at between 59 and 60 percent of 1,219,399 registered voters. Officials in the RS stated they were satisfied that the voting went peacefully, while RS President Milorad Dodik stated that the referendum would become historic. The State Prosecutorial Office has since summoned Dodik for questioning in relation to his disregard of the decision of the constitutional court of BH.
The reaction of the international community was vocal in its opposition to the referendum itself, declaring it illegal. Most prominently, the US State Department issued a statement calling upon all parties in BH to cease divisive activities and to focus on pressing socio-economic matters. The US also guaranteed support to the local government in holding the RS accountable for undermining the rule of law.
The long-term impact and influence of the referendum are yet to be seen since the question of the interest of one constituent people was sought to be resolved in a way which undermines the authority of the highest court of the country. Such acts can be extremely harmful for the integrity and balance of powers within the country itself. From the perspective of the EU and its authorities, this can be another indicator of the internal instability of the country which could further delay its path to becoming a EU member state.
Fahira Brodlija is a current LLM student at the University of Pittsburgh School of Law and graduated from the Sarajevo Faculty of Law in June 2016. Her main fields of interest are international arbitration and commercial law which she developed through the International Vis Moot competition in Vienna where she was involved both as a participant and coach. She is also involved in the NGO sector as a member of the Association Arbitri
Suggested citation: Fahira Brodlija, Referendum in Republika Srpska Held Despite the Decision of the Constitutional Court of Bosnia and Herzegovina, JURIST - Dateline, October 10, 2016,
This article was prepared for publication by Alix Ware, an assistant Editor for JURIST Commentary. Please direct any questions or comments to her at email@example.com