A weird riddle
“We are subject to the Constitution, but the Constitution is what the Court say it is…” (Charles Hughes Evans, President of the US Supreme Court, 1930-1941). The practice of the Constitutional Court of B&H in last ten years – especially when it comes to constitutional review of laws adopted by the National Assembly of the Republic of Srpska – reminds to this thought, but in a completely different legal and social context than Justice Evans have had in his mind. Without diminishing the importance of the decisions of the Constitutional Court of B&H regarding the constitutional review of some other laws, recent decisions on the constitutional review of laws regulating the ownership of natural resources in the Republic of Srpska (agricultural land, forests and forest land), seems to be particularly interesting.
Speaking about the importance of natural resources for any society is superfluously, but the importance of mentioned decisions should be discussed. Although these decisions are final, there is a need to consider the problem, because it is quite clear that solutions will not be in sight for some time. Although this is a legal issue par excellence – which consequently deserves scientific, but also expert analysis – I am deeply convinced that it is very important to dispel the simplistic vague notions of who is the owner and who has stolen something from whom! The decisions of the Constitutional Court of B&H, which refer to the constitutional review of laws governing natural resources in the Republic of Srpska, are in fact determined by an earlier decision of the same court relating to the legal regulation of state property located on the territory of the Republic of Srpska (real estate that once belonged to predecessor – Socialist Republic B&H and real estate that belong to B&H on the basis of succession of former Yugoslavia, and it has been considering as the property of any level of government or public organization in the Republic of Srpska).
The Constitutional Court of B&H had a task to determine whether the provisions of the disputed laws were in line with the Constitution of B&H. The Constitutional Court of B&H approached the solution of this problem in an extremely unusual way – it decided first of all to determine whether natural resources in the Republic of Srpska the state property of B&H, and after that to moves on the next step and decide who has jurisdiction for passing the law which will regulate that property. The Constitutional Court of B&H has determined that the natural resources in question are state property of B&H and that the competence for their legal regulation belongs to B&H [sic!]. In other words, B&H will pass laws and / or decide what belongs to state of B&H and what belongs to entities in B&H. Having in mind essence of the relevant decisions of the Constitutional Court of B&H, it follows that it is not true that agricultural land, ie forests and forest land on the territory of the Republic of Srpska belong to B&H, just as it is not correct claim that agricultural land, ie forests and forest land on territory of the Republic of Srpska are owned by the Republic of Srpska. Well, whose is it, then? It seems to be like a riddle, but this is not a problem that has a logical solution.
Let’s try to understand the whole thing in different way, by going in reverse order. B&H has jurisdiction over the state property of B&H, and therefore the Republic of Srpska has no capacity to regulate it by laws. In that sense, if we want to know what is within competences of B&H (and what is within competences of the Republic of Srpska), we must know what the state property of B&H encompasses. However, there are no constitutional rules on the state property of B&H (which is confirmed by the Constitutional Court of B&H, and the Venice Commission has the same opinion) and the state property of B&H is not subject of any law in B&H (stated by the Constitutional Court of BiH). So, we certainly are not in position to figure out what is the state property of B&H. Since we do not know what is the state property of B&H, we cannot even know whether B&H has jurisdiction over the natural resources ant what the Republic of Srpska is responsible for. We are at the beginning again! It doesn’t seem it works on this way either. It does not work in any way, because the thesis is wrongly and illogically settled up.
In addition to the mentioned mistake, the Constitutional Court of B&H has made some other mistakes by defining the term “state property B&H”. Regarding their potential for confusion, three stand out. Thus, the Constitutional Court of B&H considers that the state property of B&H is a “kind of ownership”. Although the term “property” is senior than the term “ownership” (the term “property” includes – in its scope – the term “ownership”), because property contains a variety of property rights (and ownership is only one of property rights), it seems that the Constitutional Court of B&H puts a sign of equality between them?! It is worth mentioning that property regulations in B&H, which are in line with the Constitution of B&H (those passed by entities and Brčko District – the only ones that regulate property relations in whole B&H), are based on the principle of uniformity of ownership – there is no more kinds of ownership, regardless of the fact who is owner. Therefore, although the laws those are in line with the Constitution of B&H prescribe there is only one kind of ownership, the Constitutional Court of B&H – although there is no word about it in the Constitution of B&H – finds that state property of B&H is a special kind of ownership.
In addition, the Constitutional Court of B&H considers that state property is “a special legal concept, and for that reason enjoys a special status”. The existence of a legal concept, as part of positive legislation, as well as its specificity imply the existence of legal regulations (and / or constitutional norms), which regulate the same issue. Likewise, the legal status of a legal category is not possible without regulations that regulate and determine that status (defining its elements). Following the above, the question arises: How is it possible to talk about something and its special features if it does not exist as part of the legal systems in B&H? Except in the decisions of the Constitutional Court of B&H [sic!].
I will conclude the list of interesting facts considering the relevant practice of the Constitutional Court of B&H by the fact that the Assembly of Brčko District passed the Law on Public Property of the Brčko District, which determines that agricultural land, forests and forest land, as well as other goods of general interest are the property of the Brčko District. Therefore, arises the question how it can be that the Brčko District can be the owner of natural resources (on its territory) and the Republic of Srpska cannot be the owner of the same resources on its own territory.
Last but not least, it is necessary to remind that everything started with the OHR’s decision from 2005, by which has been imposed the Law on Prohibition of Disposal of State Property of B&H. “State Property of B&H” was born then. If we have in mind that OHR is an institution that is not exists in the Constitution of B&H and which imposed an act of higher legal force (law) by an act of lower legal force (decision), we cannot expect anything better. Altogether – de nihilo nihil.
Associate professor at University of Banja Luka, Faculty of Law