BUBIĆ: JUDGMENT TARGETS REPUBLIKA SRPSKA CONSTITUTION

BANJA LUKA, AUGUST 3 /SRNA/ – Republika Srpska president’s defence attorney, Goran Bubić, told SRNA that the Republika Srpska Constitution was the primary target of the second-instance judgment handed down by the Court of BiH against President Milorad Dodik.

Bubić emphasized that with such a judgment, the Court of BiH has overthrown the constitutional order of BiH, contrary to the narrative in some parts of the public that claims the judgment defends it. "The assumption that the judgment defends BiH is entirely legally unfounded. Perhaps it defends a version of BiH imagined in someone’s mind, by those who repeat the mantra about the 'Dayton Peace Agreement as a straitjacket', but it certainly does not defend the BiH founded on the current constitutional order established by the General Framework Agreement for Peace in BiH, primarily the Constitution of BiH, the Constitution of Republika Srpska, and the Constitution of the Federation of BiH," Bubić stated. SRNA is publishing the full version of attorney Bubić’s written statement: The second-instance judgment of the Court of BiH has not yet been delivered in the criminal proceedings against President Milorad Dodik. However, we know that by rejecting the defence’s appeal, the claim from the factual description in the first-instance judgment - that President Dodik committed a criminal offense by exercising powers under the Constitution of Republika Srpska - has become “final.” Therefore, it is not only a ruling against an individual, but a ruling against the Constitution of Republika Srpska. That is why the defence repeatedly emphasized throughout the proceedings, especially in the closing arguments, that the trial was defending an act, not just a man, the opposite of the usual scenario where lawyers defend the individual, not the act. EXCLUSION OF UNLAWFULNESS In any state governed by the rule of law, no regular court can convict an individual who not only acts in accordance with the constitution but directly exercises a constitutionally prescribed power. During the criminal proceedings, particularly in the closing arguments, this defence objection was explained through the legal concept of exclusion of unlawfulness. The element of unlawfulness in any criminal offense is included in the definition of a criminal act in the general part of the BiH Criminal Code /Article 20/. However, the first-instance judgment said nothing about this (!), so it will be interesting to see how this repeated objection in the appeal was addressed in the second-instance decision. In the factual part of the guilty judgment, the Court of BiH stated: “Milorad Dodik, as an official person within an institution of Republika Srpska, in his capacity as the president of Republika Srpska, using the powers prescribed by Article 80, Paragraph 1, Item 4 of the Constitution of Republika Srpska, issued a Decree…” STEP BEYOND THE CONSTITUTIONAL COURT RULINGS ON PROPERTY The legal dilemma regarding the absence of unlawfulness should have been resolved before confirming the indictment - or at the very least during the trial. How can anyone commit a criminal act if they are clearly exercising a constitutional power, as even the factual description of the alleged offense states? In the defence’s view, this is an irreconcilable contradictio in adjecto, which should have resulted in an acquittal. Ignoring the objection of unlawfulness is clear evidence that the target of this trial is the Constitution of Republika Srpska, not just its marginalization, but its complete nullification. Following the Constitutional Court’s ruling that “Republika Srpska cannot be the holder of property rights...” /decision U-4/2021 and others/, this judgment aims to complete the project of legal devastation of Republika Srpska. Of course, this is all the more relevant given that the Constitution of Republika Srpska is harmonized with the Constitution of BiH, as also confirmed by the Venice Commission. It becomes a legal paradox to criminalize the conduct of the constitutional president of Republika Srpska based on that same Constitution. It would be legally illogical and unacceptable for laws adopted at the BiH level to require adopting the laws, which would create need for the entity constitutions to be harmonized with such laws. No complex federal state, such as BiH, works that way. The evolution of American federalism developed the doctrine of dual sovereignty - of both the federal and state governments. As is well known, the BiH Constitution was drafted by American lawyers. JUDGMENT UNDERMINES LEGAL ORDER IN BiH Therefore, it must be reiterated publicly that this Court of BiH’s judgment has undermined the constitutional order of the country, contrary to the narrative that it supposedly defends it. The notion that BiH is being defended through this ruling is legally baseless. Perhaps it defends a BiH imagined by those who call the Dayton Peace Agreement a "straitjacket," but not the BiH grounded in the constitutional framework established by the Dayton Peace Agreement: the Constitution of BiH, of Republika Srpska, and of the Federation of BiH. REGULAR COURT CAN ONLY ACCEPT CONSTITUTIONAL NORMS It is now fully exposed that this trial was not about an individual’s criminal liability for some alleged act. More than that, the outcome of this case against a constitutional president cannot be reduced simply to the conclusion that it is limited to judicial interference in the will of voters by eliminating a political opponent. This is a judgment against the Constitution of Republika Srpska. In plain terms, the Court of BiH has, through its findings, hung the Constitution of Republika Srpska out to dry. This is completely irresponsible behaviour of the court. A regular court, at any level, has nothing to do with constitutional law matters, except to accept constitutional legal provisions as they stand. It is evident it is legal arbitrariness with consequences that are, at this moment, difficult to fully comprehend.