Biščević-Tokić: For the Trojka and their coalition partners, state property is 'lord's straw'

(Patria) - The Government of the Federation of Bosnia and Herzegovina, at its session held on November 15, 2023, adopted a Decision on changing the purpose of forest land and temporary use of forest land for other purposes.

Jasmina Biščević Tokić, an SDA representative in the House of Representatives of the Federation Parliament, problematized the adoption of this decision, and in an interview for Patria, she points out that the decision is controversial for several reasons, primarily because it regulates the issue of changing the purpose of forest land, which represents state property.

„The decision, by its title, and especially by its content, is formulated in a way that foresees the possibility of using forest land for other purposes, not for the purpose that forests serve by their nature.

Therefore, it is about changing the purpose of forest land, and this represents the disposal of state property. This decision stipulates that even when forest land is allocated for temporary use, this use can be for other purposes, not for the original purpose that forests themselves have. Therefore, it is clear that the decision implies the disposal of state property, which entities do not have the right to do. Moreover, entities cannot make decisions on the disposal of state property at all, before such a possibility is possibly prescribed by state law.

Patria: Are you actually claiming that the decision of the FBiH Government represents an usurpation of the rights of the state of BiH and a violation of the BiH Constitution?

„Of course, this decision usurps the property interests of the state of BiH, but also violates the decisions of the Constitutional Court of BiH. According to the Law on the Temporary Prohibition of Disposal of State Property of Bosnia and Herzegovina, adopted by the High Representative, as well as according to the decisions of the Constitutional Court of BiH, the regulation of state property is within the exclusive jurisdiction of BiH institutions, in this specific case, the BiH Parliament. Therefore, the unconstitutionality of the decision arises from the fact that the FBiH Government regulates an issue that is not within its jurisdiction at all.

I remind you that the Constitutional Court of BiH made a decision back in 2012 establishing that Republika Srpska does not have the constitutional jurisdiction to regulate the legal matter that is the subject of the Law on the Status of State Property located in the territory of Republika Srpska and is subject to a disposal ban, because this matter, according to the Constitution of Bosnia and Herzegovina, is within the jurisdiction of the state of Bosnia and Herzegovina. Therefore, if one entity does not have the constitutional jurisdiction to regulate the issue of disposing of state property, it is clear that the other entity, in this case the FBiH, cannot have that right either. I want to emphasize that the OHR has taken a completely identical stance.

Patria: However, the Prime Minister of the FBiH, Nermin Nikšić, publicly stated in media appearances that the FBiH Government had the support and a kind of consent from the OHR for adopting this decision. How do you comment on such statements?

„Such claims are completely unfounded, as well as untrue. This is best confirmed by the act of the OHR Legal Department, number: 029/2023/JLD/SS of 15.09.2023, which was sent to the Federal Ministry of Agriculture, Water Management and Forestry of FBiH in connection with this Decision of the FBiH Government, and which explicitly states that the change of purpose of forest land clearly leads to significant legal consequences for the property in question and thus would constitute a disposal action for which the active participation and consent of the owner, meaning the state of BiH, is required.

Therefore, Prime Minister Nikšić and the FBiH Government, although they were aware of the OHR's position, ignored such a position and acted precisely contrary to it. For this reason, I expect a certain reaction from the High Representative, given that the FBiH Government tried to shift the entire burden of its obviously unconstitutional actions to the OHR. I also want to emphasize the fact that it was precisely the High Representative who adopted the Law on the Temporary Prohibition of Disposal of State Property of Bosnia and Herzegovina, and that the legal positions of the OHR regarding the application of that Law can be considered authentic and legally binding interpretations of its provisions.

Patria: You claim that Prime Minister Nikšić is providing inaccurate information and that it is not true that the OHR supported the adoption of the FBiH Government's decision?

„Yes, because the act of the OHR Legal Department, number: 029/2023/JLD/SS of 15.09.2023, precisely states that the change of purpose of forest land, according to the law adopted by the High Representative, would actually constitute the disposal of state property, and this cannot be done without the active participation and consent of the state of BiH. In the public interest, it is important to clarify that the aforementioned OHR act precisely states that the allocation of forest land for temporary use, but without changing its purpose, would not be considered disposal within the meaning of the Law on the Temporary Prohibition of Disposal of State Property of Bosnia and Herzegovina. However, the decision of the FBiH Government precisely involves the allocation of forest land for temporary use, and for other purposes, which confirms that it is a change of purpose of forest land and, accordingly, the disposal of state property.

Patria: What are your assessments regarding this decision of the FBiH Government, can it negatively affect potential investors?

„I want to emphasize that investing in BiH cannot result in damage to the interests of the state of BiH, nor can it result in the violation of its laws, especially not the violation of the state Constitution or non-compliance with the decisions of the Constitutional Court of BiH. Investment implies mutual interest, both of the investor and the state of BiH. I believe that by adopting such decisions that undermine the rule of law and create economic insecurity, the greatest damage is actually done to potential investors.

The Federal Minister of Agriculture, Water Management and Forestry, who was also the proposer of this decision, and the Prime Minister of the FBiH, Nermin Nikšić, should have taken this into account first and foremost. The responsible minister, the Prime Minister of the FBiH, as well as potential investors, must be aware of the fact that according to the Law on the Temporary Prohibition of Disposal of State Property of Bosnia and Herzegovina, any decision, act, contract, or any other legal instrument by which state property is disposed of contrary to the law is null and void.

Patria: Given that you have updated this issue, do you intend to undertake any concrete activities to officially review the adoption of this decision and raise the issue of responsibility for its adoption?

„Of course, at the very first session of the House of Representatives of the FBiH, I will, through a representative's question, request the submission of complete information and documentation from the responsible federal minister and the FBiH Government regarding the adoption of this decision.

I believe that the responsibility for its adoption lies primarily with the Federal Minister of Agriculture, Water Management and Forestry, who is the proposer of this decision, but also with the Prime Minister of the FBiH Government, who is responsible for the work of the Government. Also, I will request an official statement from the federal and state attorney's offices, whose basic function is to protect the BiH Constitution and the FBiH Constitution, but also to perform legal protection of BiH's property and property interests.

Of course, we will also consider the possibility of submitting requests to the competent prosecutor's offices to get involved in this issue, because we should not forget the fact that with the adopted decision of the FBiH Government, the state of BiH is deprived of income that it could generate from the temporary use of forest land.

I believe that the Budget of the state of BiH has been damaged in this way, and the competent investigative bodies should take this into account ex officio. The adopted decision foresees the distribution of income generated from the use of forest land between the FBiH and the cantons in a ratio of 40%-60%. Therefore, the state of BiH, although it is the owner of the forest land, is deprived of any income. And finally, we will consider what legal mechanisms are available to challenge this obviously unconstitutional Decision of the FBiH Government before the Constitutional Court of the FBiH or the Constitutional Court of BiH. Of course, we will also request a reaction from the OHR, because we should not forget that the credibility of the High Representative has been seriously damaged in public by claims that the OHR stands behind such a decision of the FBiH Government.

Patria: And finally, how do you understand the attitude of the current government, and especially the representatives of the Trojka, towards state property?

„It is obvious that the Trojka considers state property to be 'property without a master', or 'lord's straw', as something that anyone can do with as they please. Such an attitude is reprehensible, and from the perspective of the interests of the state of BiH, it is undoubtedly treacherous, because if you endanger the interests of the state of BiH, if you dispose of state property without its approval, if you take income from the state and economically weaken the state, then it is clear that by such actions you are betraying the state of BiH.

To put something that is state-owned into use, and at the same time not seek the consent and approval of the state for such a decision, and even completely abolish the state's right to have a say in the disposal of its property, is not only betrayal, but also an attack on the state. Such conduct simply does not correspond with the state interest.