LIFE-THREATENING PRECEDENT FOR BiH AS JUDICIAL AUTHORITY ASSUMES ROLE OF HISTORIOGRAPHY, POLITICS AND CONSTITUTION-MAKER

BANJA LUKA, JANUARY 28 /SRNA/ – The most recent "Miodrag Malić" case, as well as the earlier "Vojin Pavlović" case, represent a turning point in a dangerous process in which BiH's criminal justice system is being used as an instrument of political engineering of history, identity and the country's constitutional order, constitutional law professor Siniša Karan has assessed.

Karan told SRNA that these verdicts are not isolated legal cases, but part of a broader, long-term process in which courts are being used to construct a new, one-sided political truth about the war in BiH. He pointed out that this is no longer about individual criminal acts, but rather an attempt at a judicial revision of the character of the war, in which it is artificially and unilaterally determined who is a victim and who an aggressor, who a criminal and who bears political and historical responsibility. Professor Karan assessed that this represents a life-threatening precedent for BiH, as the judiciary is assuming the role of historiography, politics and constitution-making. "As has been stated many times, the pain of mothers in black and white headscarves is the same, but unfortunately not everyone thinks so. No victim must be abused for political purposes, and likewise, no individual should be silenced with prison simply for holding someone's photograph," Karan stressed. However, he said, legal means are now being used to create a narrative in which the Serb people are collectively criminalized and Republika Srpska stigmatized as a `genocidal entity`. He emphasized that such a narrative has no basis in international law, the Dayton Peace Agreement, or historical facts. "These verdicts are a direct consequence of the imposed amendments to the BiH Criminal Code from 2021 by Valentin Inzko, adopted without democratic procedure, without the participation of the Parliamentary Assembly of BiH, and without the consent of the entities and constituent peoples. This is a legal precedent that undermines the principles of constitutionality and legitimacy of the criminal justice system. It also violates the right to freedom of expression. It is absurd that in the 21st century a person is punished with prison for holding up someone's picture," Karan stated. According to him, criminal law, as the most intensive form of state repression, must rest on democratic legitimacy; otherwise, it becomes an instrument of political domination and ideological hegemony. He said that the Court of BiH applied Article 145a of the BiH Criminal Code in the "Malić" and "Pavlović" cases, which sanctions incitement to national, racial and religious hatred, and which is part of the imposed legal package. "This shows that the legal basis itself is politically controversial and was introduced without procedure," Karan added. According to him, such verdicts are part of a broader package of pressure that includes the actions of an illegitimate High Representative, political instrumentalization of the judiciary, and attempts to unitarize BiH. "The goal is the complete dismantling of the Dayton structure of BiH and the creation of a centralized, unitary state dominated by a single political and national vision," he said. Karan explained that the verdict against Malić represents a continuation of the same policy that sought the abolition of the coat of arms, anthem and Republic Day, under the pretext that they are "offensive," that they "remind" others of something, and that they violate someone's feelings. "In that narrative, everything Serbian becomes a problem; everything with historical and identity continuity is declared a provocation, and the only thing that is not disputed is a submissive policy and acceptance of someone else's /their/ interpretation of history. Clearly, they will only not be offended by those who accept that they are the sole victims and that we are the aggressors, who accept their history, their politics and their vision of BiH," Karan said. Essentially, he added, this is an attack on the constitutional identity of BiH. "Dayton BiH is founded on the principles of the constituent status of peoples, entity autonomy and a complex state structure. Any attempt to change the historical narrative of the war and the character of the state through court rulings represents a direct attack on Annex Four of the Dayton Agreement. The judiciary has no constitutional mandate to write history, define collective guilt, or reshape the state. History cannot be written through verdicts, just as peace cannot be built on falsifications," Karan emphasized. Professor Karan concluded in his statement to SRNA that Republika Srpska will continue to defend truth, constitutionality and the Dayton structure of BiH – the struggle for the constitutional identity of BiH is a struggle for peace, stability and equality of peoples.