The Political Economy of Nikšić's Government is Based on Unconstitutional Actions

By: Sifet Kukuruz, legal expert

The Constitutional Court of BiH, at its session held on May 30, 2024, passed a decision annulling the decision of the FBiH Government on changing the purpose of forest land and temporary use of forest land for other purposes, which was made on 15.11.2023.

Due to the harmfulness of the Federal Government's decision to the interests of BiH, the Constitutional Court was forced to issue a temporary measure annulling this decision until the Constitutional Court makes a final decision in this matter.

Following such a decision by the Constitutional Court of BiH, there can be no doubt or legal dilemmas that the Federal Prime Minister and the Federal Minister of Agriculture, Water Management and Forestry, who proposed the adoption of such an unconstitutional decision to the Federal Government, must be held criminally responsible.

Of course, the responsibility of employees of expert services who gave the FBiH Government an opinion that there was a constitutional and legal basis for adopting such an unconstitutional decision cannot be excluded. The degree of legal irresponsibility is best illustrated by the fact that in matters that do not fall within the jurisdiction of the entity, there cannot even be a legal basis for a decision by entity authorities.

Therefore, it is necessary to ask the question - how could the Federal Prime Minister and the Federal Minister find a legal basis for adopting an unconstitutional decision in matters that are outside the jurisdiction of the entity?

Determining and clarifying all the facts and circumstances under which this unconstitutional decision was made is the task of the competent authorities, who should officially initiate proceedings to determine the responsibility of the Federal Prime Minister and the relevant Federal Minister.

This procedure is necessary, especially in light of the fact that the implementation of the unconstitutional decision of the Federal Government, in addition to violating the Constitution of BiH and the decisions of the Constitutional Court of BiH, has also resulted in significant financial damage to the state budget.

The Federal Prime Minister and the Federal Minister knew or should have known that the entity government does not have the constitutional jurisdiction to regulate the issue of disposing of state property, and the temporary allocation of forest land for use, with a change in its purpose, undoubtedly constitutes an act of disposing of that land.

The Constitutional Court of BiH has already explained this in detail in several of its decisions. Also, the fact that the legal department of the OHR sent an official act to the Federal Government clarifying what constitutes an act of disposing of state property cannot be ignored.

Therefore, the confusing, but also legally completely unsustainable claim of the Federal Prime Minister that the FBiH Government, with its unconstitutional decision, did not change the titleholder, i.e., the owner of the forest land in Vareš, does not mean that the Federal Government, which he heads, did not unconstitutionally dispose of state property.

The name of the decision refutes Nikšić's claims

That the Federal Prime Minister and the relevant Federal Minister were aware that the adoption of the decision constituted a change in the purpose of forest land and, accordingly, constituted an act of disposing of state property, is sufficiently indicated by the name of the decision itself.

Namely, the very name of the decision clearly states that the decision regulates the issue of changing the purpose of forest land and prescribes the conditions for allocating forest land for temporary use, for other purposes.

Therefore, the name of the decision itself confirms that it changes the purpose of forest land and that the land is allocated for use for purposes other than those for which forest land is naturally used.

Considering that the Constitutional Court of BiH has already clarified this issue with its decisions, the only logical conclusion is that everything the Federal Prime Minister states can and should be used as evidence against him.

It should be reminded once again that the legal department of the OHR submitted an act to the Federal Government explicitly stating that the adoption of the disputed decision of the FBiH Government, which was submitted to the OHR for review, would inevitably constitute an act of disposing of state property. And only the state of BiH can dispose of state property.

If he learned anything from the experience of Milorad Dodik, the Federal Prime Minister should have learned by now not to follow Dodik's footsteps. And that the Federal Prime Minister has embarked on the unconstitutional path of entity president Milorad Dodik is proven by the Constitutional Court of BiH's decisions in the case of land allocation in Vareš and the sale of state land on Jahorina.

By coincidence, these two decisions were made at the same session of the Constitutional Court of BiH, thus immortalizing this unconstitutional "momentum" of the Federal Prime Minister and the entity president.

In this way, the Constitutional Court of BiH has justifiably associated the Federal Prime Minister with the entity president Milorad Dodik, as both make unconstitutional decisions that are harmful to BiH.

The only logical conclusion in the case of the temporary allocation of forest land in Vareš for use, with a change in its purpose, is that it cannot be a matter of ignorance on the part of the Federal Prime Minister and the relevant minister, and that the competent investigative bodies should, ex officio, if they have not already, initiate proceedings to determine their responsibility.

And that this procedure is inevitable is also evident from the act of the Federal Public Attorney's Office of March 14, 2024, which stated that only the state of BiH, not the entity, can submit a request for a change in the purpose of forest land that constitutes state property.

Also, the state Public Attorney's Office, in its act of May 17, 2024, clearly stated that the decision of the Federal Government is unconstitutional and that for this reason, it has already initiated appropriate legal actions in accordance with the provisions of the Law on Temporary Prohibition of Disposal of State Property of Bosnia and Herzegovina.

A Coin for Maintaining Power

Based on the previous statements of the Federal Prime Minister, it can be concluded that state property does not represent any value to him, so it is quite logical that he continues to squander this property for next to nothing and without accountability.

However, the latest decision of the Constitutional Court of BiH shows that the state of BiH has, after all, decided to present the bill. And that bill must be paid.

The decision of the Constitutional Court of BiH, which annuls the decision of the Federal Government, shows that state property is not "free for the taking" after all.

From the day the FBiH Government was unconstitutionally established, it became clear that state property does not hold any particular value for the Federal Prime Minister, unless it is used as a means to maintain power.

This position is confirmed by the recent statements of the Federal Prime Minister that state land is some kind of "field," and state forest is a worthless "scrub." Following such logic, the Drina River would certainly be just some "stream" or "puddle" for the Federal Prime Minister tomorrow.

Nikšić's Hypocrisy

Therefore, the statement of the Federal Prime Minister that he respects the decision of the Constitutional Court of BiH, but that it kills hope for investors, is completely hypocritical.

The hypocrisy of the Federal Prime Minister stems from the fact that he previously, completely consciously, violated several decisions of the Constitutional Court of BiH which established that entities do not have the jurisdiction to regulate the issue of state property, with the Constitutional Court also clarifying what constitutes the disposal of state property.

Such a statement by the Federal Prime Minister is political cynicism because it implies that the Federal Prime Minister would prove his legalism by selectively respecting the decisions of the Constitutional Court of BiH.

Therefore, it is impossible to believe in Nikšić's willingness to respect the decisions of the Constitutional Court of BiH, given that he has already established himself as a violator of the Constitutional Court of BiH's decisions concerning state property. In disrespecting the Constitutional Court of BiH's decisions concerning state property, only Milorad Dodik can compete with the Federal Prime Minister.

Therefore, the Federal Prime Minister must simply be compelled to respect the final and binding decisions of the Constitutional Court, but at the same time, he must be held accountable for violating previously made decisions of the Constitutional Court.

There can no longer be any justification or excuse for the competent prosecutor's office not to initiate proceedings against Prime Minister Nikšić and the relevant Federal Minister.

By adopting the unconstitutional decision of the FBiH Government, not only the Constitution of BiH and the decisions of the Constitutional Court of BiH were violated, but the budget of BiH was also damaged, given that the state of BiH did not generate any income from the use of forest land in Vareš, even though it is state property.

And until the investigative and judicial bodies conduct proceedings against the Federal Prime Minister and the relevant Federal Minister, they have an obligation to urgently suspend all investor activities related to the exploitation and destruction of forest land in Vareš based on the unconstitutional decision of the Federal Government.

And what kind of alleged investment it is, perhaps best shown by the fact that the Federation of BiH and the Zenica-Doboj Canton together generate a modest income of a total of 232,437.93 KM from the exploitation of forest land in Vareš.

Therefore, the decision of the Federal Government cannot be considered an investment, but exclusively a sell-off and exploitation of BiH's resources.

Such a meager amount of compensation for the use of forest land best proves that only investors benefit from Nikšić's investments and that the Federal Government does not conduct economic policy at all, but rather implements a political economy where political, not economic, criteria are decisive.

Such a policy not only has no perspective but is also proving to be extremely dangerous for BiH. For this reason, such a policy must be stopped as soon as possible, and the decision of the Constitutional Court of BiH is the first step in that direction.

It is time for the competent investigative and judicial bodies to continue the activities on the path paved by the decisions of the Constitutional Court of BiH.