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Key Shortcomings of the Constitutional-Political System Perpetuate the Disorganization of the State-Entities

Received: 27 April 2022     Accepted: 12 May 2022     Published: 24 May 2022
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Abstract

In 1995, Croats, Bosniaks, and Serbs stopped their war, under international coercion, in the preamble, and negotiated a provision according to which they, as constituent peoples, negotiated the Constitution of BiH. This provision represents a principle of constitutiveness of the Constitution and all other constitutional principles are its derivatives, i.e. without it (consent of the Constitution-makers) there would be no Constitution and then without its normative concretization into a case study there is no viable or maintained state. Since this agreement was created under coercion, then the (constitutive principle) the Constitution or BiH as a complex state is of an artificial character, which results in constant instability caused by conflicts over the status of constituent peoples. The status of constituent peoples is not ensured by equal rights of the two entities or equal influence in joint institutions. While one people has the right to adopt a constitution as an act exercising the right to self-organize its own entity, the other two peoples do not have that right. The asymmetric character, powers and functions of the House of Peoples in the two entities, and then inconsistent election rules and their interpretation, violation of suffrage, circumvention of the principle of parity and influence of the constituent people in the House of Peoples and in the institution of the collective Head of State, undermine the federal and constitutive principle of state - entity organization.

Published in International Journal of Law and Society (Volume 5, Issue 2)
DOI 10.11648/j.ijls.20220502.16
Page(s) 182-197
Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.

Copyright

Copyright © The Author(s), 2022. Published by Science Publishing Group

Keywords

De Facto Civil State, Principle of Constitutiveness of Constitution, Collective Political Rights, Suffrage, Political Rights, Nationally Organized Citizens, Subjective Political Rights of Citizens, Constituent Peoples

References
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[4] Duguit, L. (1913). Les transformations du droit public. Librairie Armand Colin. Paris.
[5] Kymlicka, W. (2003). Multikulturalno građanstvo. Liberalna teorija manjinskih prava, Zagreb. p. 53.
[6] Lovrenović, D. (2006). Proclamation of Bosnia as a kingdom in 1377 (Revaluation attempt)). Forum Bosnae 3-4. Sarajevo 19999. 227-287; Ibid; At the landslide of history (the holy crown of Hungary and the holy crown of Bosnia) 1387-1463, Synopsis, Zagreb-Sarajevo. p. 614 – 723.
[7] Hohfeld, W. (1919). Fundamental Legal Conceptions. Yale University Press. New York. p. 45.
[8] Isensee, Josef. (2004). State, Constitution, Democracy. Political culture. Zagreb. /Josef Isensee/Paul Kirchhof (Hg.), Handbuch des Staatsrechts der Bundesrepublik Deutschland, Bd. I, Grundlagen von Staat und Verfassung, Heidelberg 1. Auflage 1987, 2. Auflage 1995, & 13, S. p. 108, 151, 109, 151.
[9] Jovičić, M. (1988). Roads and diversions of Yugoslav constitutionalism. Science book. Belgrade. p. 9.
[10] Lohman, G. (1999). “Collective” human rights for protecting minorities? Political Thought, Vol. XXXVI, no. 4. p. 40.
[11] Legal lexicon, (2006). Miroslav Krleža Institute of Lexicography. Zagreb. p. 610.
[12] Nikolić, P. (1989). Federation and federal units. Official Gazette. Belgrade. p. 72.
[13] Nadaždin, M. (2011). Individual and collective human rights - controversies of one division. Proceedings. Faculty of Law, University of Sarajevo. p. 59.
[14] Ricciardi, Mario. (1997). Constitutive Rules and Institutions, (Paper presented at the joint meeting of the Irish Philosophical Club and the Royal Institute of Philosophy. Ballymanscanlon. p. 1.
[15] Ruso, J. J. (1949). Social Contract. Belgrade. p. 28, 83.
[16] Pranjic, S. (2017). State Management: Foundations of New State Management and State Governance. University Press, Sarajevo. p. 247.
[17] Pranjic, A. S. (2020). Critical Review of the Practice of Courts of Bosnia and Herzegovina in Resolving CHF Loan Disputes. International Journal of Law and Society. Vol. 3, No. 3, pp. 140-153. doi: 10.11648/j.ijls.20200303.18 Received: Received: August 18, 2020; Accepted: September 7, 2020; Published: September 19, 2020. pp. 140-153.
[18] Pranjic, S. (2019). Functions of State Management in the Principles of Rule of Law. Principles of State Management. LAMBERT Academic Publishing is trademark of International Book Market Service Ltd. member of OmniScriptum Publishing Group 17 Meldrum Street. Beau 71504. Mauritius. p. 56.
[19] Pranjić, S. (2011). “A case study on normative concretization of legal state principles”, Collected Papers of the Faculty of Law / Publisher: University “Vitez” Travnik, BiH (www.unvi.edu.ba). p. 35.
[20] Pranjić, S. (1988). Influence of delegates on decision-making in the VUR of the Municipality of Tuzla. Journal for the Theory and Practice of Communal Communities. no. 6. Belgrade.
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  • APA Style

    Karla Pranjic, Stjepo Pranjic. (2022). Key Shortcomings of the Constitutional-Political System Perpetuate the Disorganization of the State-Entities. International Journal of Law and Society, 5(2), 182-197. https://doi.org/10.11648/j.ijls.20220502.16

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    ACS Style

    Karla Pranjic; Stjepo Pranjic. Key Shortcomings of the Constitutional-Political System Perpetuate the Disorganization of the State-Entities. Int. J. Law Soc. 2022, 5(2), 182-197. doi: 10.11648/j.ijls.20220502.16

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    AMA Style

    Karla Pranjic, Stjepo Pranjic. Key Shortcomings of the Constitutional-Political System Perpetuate the Disorganization of the State-Entities. Int J Law Soc. 2022;5(2):182-197. doi: 10.11648/j.ijls.20220502.16

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  • @article{10.11648/j.ijls.20220502.16,
      author = {Karla Pranjic and Stjepo Pranjic},
      title = {Key Shortcomings of the Constitutional-Political System Perpetuate the Disorganization of the State-Entities},
      journal = {International Journal of Law and Society},
      volume = {5},
      number = {2},
      pages = {182-197},
      doi = {10.11648/j.ijls.20220502.16},
      url = {https://doi.org/10.11648/j.ijls.20220502.16},
      eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20220502.16},
      abstract = {In 1995, Croats, Bosniaks, and Serbs stopped their war, under international coercion, in the preamble, and negotiated a provision according to which they, as constituent peoples, negotiated the Constitution of BiH. This provision represents a principle of constitutiveness of the Constitution and all other constitutional principles are its derivatives, i.e. without it (consent of the Constitution-makers) there would be no Constitution and then without its normative concretization into a case study there is no viable or maintained state. Since this agreement was created under coercion, then the (constitutive principle) the Constitution or BiH as a complex state is of an artificial character, which results in constant instability caused by conflicts over the status of constituent peoples. The status of constituent peoples is not ensured by equal rights of the two entities or equal influence in joint institutions. While one people has the right to adopt a constitution as an act exercising the right to self-organize its own entity, the other two peoples do not have that right. The asymmetric character, powers and functions of the House of Peoples in the two entities, and then inconsistent election rules and their interpretation, violation of suffrage, circumvention of the principle of parity and influence of the constituent people in the House of Peoples and in the institution of the collective Head of State, undermine the federal and constitutive principle of state - entity organization.},
     year = {2022}
    }
    

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    AB  - In 1995, Croats, Bosniaks, and Serbs stopped their war, under international coercion, in the preamble, and negotiated a provision according to which they, as constituent peoples, negotiated the Constitution of BiH. This provision represents a principle of constitutiveness of the Constitution and all other constitutional principles are its derivatives, i.e. without it (consent of the Constitution-makers) there would be no Constitution and then without its normative concretization into a case study there is no viable or maintained state. Since this agreement was created under coercion, then the (constitutive principle) the Constitution or BiH as a complex state is of an artificial character, which results in constant instability caused by conflicts over the status of constituent peoples. The status of constituent peoples is not ensured by equal rights of the two entities or equal influence in joint institutions. While one people has the right to adopt a constitution as an act exercising the right to self-organize its own entity, the other two peoples do not have that right. The asymmetric character, powers and functions of the House of Peoples in the two entities, and then inconsistent election rules and their interpretation, violation of suffrage, circumvention of the principle of parity and influence of the constituent people in the House of Peoples and in the institution of the collective Head of State, undermine the federal and constitutive principle of state - entity organization.
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Author Information
  • Faculty of Law, University in Mostar, Mostar, Bosnia and Herzegovina

  • Faculty of Law, University Vitez, Travnik, Bosnia and Herzegovina

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