Return of the Structured Monologue

14 July 2015 by Valery Perry

DPC Blog
Return of the Structured Monologue
Valery Perry
July 14, 2015

( BHS verzija - BCS version )

The renewed threat of a referendum in the Republika Srpska (RS) on the role of the state in the justice process is back. No one should be surprised.

Back in 2011, the last time SNSD’s Milorad Dodik floated the notion of a referendum on the entity’s "participation” in state-level judicial reform processes and bodies, he only agreed to postpone such a referendum "for now” after securing the concessions he sought from then EU foreign policy chief Catherine Ashton [See House of Cards: the EU’s "reinforced presence” in Bosnia and Herzegovina  and page 51 - click A security risk analysis  for background ] His gripes with the state justice system were purportedly based on his interest in maintaining a strong RS and a weak state; however, it was broadly recognized that the effort had more to do with his own fear of being prosecuted by state-level bodies for corruption than anything else. He had previously successfully intimidated the international community to back away from other efforts to promote a more functional and independent justice sector, for example when he managed to secure the curtailment of international judges and prosecutors for the Court of BiH’s specialized chamber for organized crime and corruption [Click HERE]. And, sure enough, the corruption investigation against Dodik was passed down from the state to RS authorities, where it was unceremoniously dropped by that entity’s non-independent judiciary [See Corruption Probe Dropped Against Bosnian Serb Leader ]. Other BiH politicians equally fearful of the possible consequences of this body heaved a sigh of relief at Dodik’s success.

After putting the brakes on state-level justice sector reform processes in 2011, he secured the seal of approval of an EU-sanctioned "Structured Dialogue” on the justice sector, a concession that enabled him to pursue the real agenda of his threatened referendum with new legitimacy: the continued weakening of the existing state judicial framework. Despite EU statements that the Structured Dialogue process was business as usual, and aimed at improving efficiency and the implementation of good practices, the effect has been to not only block anychanges that might promote an independent judiciary outside of party control, but to begin to undo reforms to construct a credible justice system. [See footnote 3 of EU Policies Boomerang: Bosnia and Herzegovina’s Social Unrest  for more information]

As seen so often in post-Dayton BiH, the system worked for the political elite – just not for the people.

The referendum threat is back, this time based on Dodik’s interest in distracting the media, citizens and others in the RS (and, to a lesser extent, in BiH generally) from the issues that really matter: the breakdown of the RS political patronage system in the wake of SNSD’s significant electoral losses in October and the impact on the weak entity coalition; the continuing and widespread allegations of corruption and malfeasance in Banja Luka politics; and new challenges (but no substantially new visions) from non-SNSD voices.

Talk of a referendum has five main consequences, all of which are beneficial to Dodik’s political machine. First, it provides a fact-free environment in which Dodik can pontificate on his singular role as protector of BiH’s Serbs without being asked to explain what he has actually delivered in terms of job creation, pension benefits, quality health care, or other non-trivial issues. Second, the circus puts RS opposition parties in a difficult position, as they are eager to criticize Dodik’s non-democratic impulses, but fear that any semblance of support for state-level justice will result in an immediate SNSD-led media backlash.

Third, there is an added benefit across the inter-entity boundary line (IEBL) as Bosniak leaders tend to break out in a rash when they hear the word "referendum,” leading them to up the ante on their own ethno-national rhetoric, thereby reifying Dodik’s allegations of a Bosniak centralization conspiracy. Fourth, when everyone is focused on Banja Luka (if they haven’t already checked-out for summer holidays), attention shifts from what Dodik’s ally Dragan Covic is up to, giving him wide range to continue the pursuit of his own electoral unit (if not de facto entity) that would not only bequeath Mostar to his political faction, but would ensure that HDZ does not just represent a constituent people, but instead exists as a sort of constituent party in perpetuity.

And fifth, the few in the international community that pays attention to these matters fret about any action that might threaten today’s status quo, which is increasingly mischaracterized as "stability” rather than the stagnation and regression that it really is. This puts many international actors into one of three long-observed poses: a) appeasement of the spoilers through verbal encouragement to come back to the table and dictate a lower bar for reforms; b) a focus on non-consequential financial and programmatic support to "technical reform” that misses the mark on the political weaknesses in the judicial sector but make home country donor offices feel good about their investments in BiH; and c) repeated statements to the press that since the citizens of the country voted for these officials, then the actions of these elites must reflect the views of the people. [For more on why this is not the case, see Is Substantial Political Reform in Bosnia and Herzegovina Possible through the Ballot Box in October 2014?].
Again, this works well for everyone involved in the short-term – except the people of BiH.

It is interesting to consider what we know about what people in the RS – even more importantly, what Serbs in the RS – think about the justice sector, to the extent that they think about it at all outside of the scope of traffic and parking tickets.

A 2013 poll sought to find out about this and other issues. In developing the set of questions, special attention was put on questions that would reflect respondent interests, not positions. Interests reflect the broad articulation of what someone wants; positions are a hard, non-negotiable proposal on how to get what someone wants. While there can be many different ways to fulfill an interest, a reliance on positions ensures that creative solutions are not developed, and that certain position-based parties can dominate.

The poll asked two questions related to the issue of the judiciary:

Q: To what degree do you think the following sectors are important to be addressed in state-level constitutional reforms? Very important, somewhat important, somewhat not important or not important; justice was one of several sectors noted.

Q: Under the jurisdiction of which government level – state, entity, canton or municipality – should each of the areas below be in order to ensure better functionality; fighting crime and corruption was one of several issues noted.

An overwhelming majority of respondents (98.5%), including a vast majority of RS-Serb majority respondents, responded that the justice sector should be addressed in state-level constitutional reform:

  All respondents: 98.5%

 Some reading this data would argue that this unexpected RS/Serb response merely means that those respondents want constitutional reform to strengthen the entity, and minimize the state role. However, another question shows this is not the case.

Responses to the question on the preferred level of jurisdiction of the fight against crime and corruption show high support for placing this issue at the state-level, with 79.6% of all respondents indicating this preference. Of even more interest, 63.3% of RS-Serb majority respondents noted a preference for state-level jurisdiction in fighting crime and corruption, with only 31.6% noting a preference for entity-level competence. The fact that fewer than one-third of respondents supported entity-level jurisdiction shows, at a minimum, that there is little faith among Serb respondents in the RS that entity-level institutions are capable of effectively playing this role. There is nothing to suggest that confidence in the judiciary in the RS has increased since this poll. (For a full report on this poll, see Constitutional Reform in Bosnia and Herzegovina: Engaging Civil Society; for an analysis of this and six other polls, see Constitutional and Governance Reforms in Bosnia and Herzegovina: Does Public Opinion Matter?)

This response – in an environment of significant media pressure, patronage politics and pressure on civic actors – is telling. Respondents in the RS see that the status quo does not work for them; it certainly does not effectively fight crime and corruption.

With a change in European Commission personnel last year came a shift in emphasis in the structured dialogue process; Jean-Eric Paquet, the new EU lead on the matter, included civil society actors in the process, much to the vocal chagrin of the RS authorities, who have complained ever since that they want to get back to their priority (of gutting the judiciary). This factor, along with the downturn in the political and fiscal fortunes of Dodik and his government, also undergird his referendum plan. (The EU’s 12 July decision to postpone the session of Structured Dialogue planned for July 13-14 is not unrelated to these developments.)

Dodik sees this, and does not want to get involved in a discussion on the merits of the justice sector’s performance in the RS, or of the best way to fight corruption. Distraction is the only tactic at hand.

His move is aimed less at residents of the RS and more at the international community as he seeks lower standards to ensure he can avoid possible prosecution while maintaining the veneer of goodwill cooperation. What should the response be? It should not mirror Ashton’s 2011 appeasement; the seeds of today’s threats were planted four years ago. Instead a single-minded and laser-focused domestic and internationally-supported anti-corruption effort should be instituted, beginning with past and ongoing corruption related to privatization. Every (euro)cent of justice-related sectoral funding should be spent and aimed at meaningful steps in strengthening the judiciary to fight endemic official corruption and abuse of office, as measured not by workshops and indictments but by actual effective prosecutions and convictions at the highest level. Polling data suggests this would be welcomed by citizens, who recognize that the greatest barrier to real socio-economic reform lies not in projects and promises, but in combatting pervasive corruption that entrenches the local power elites in unaccountable clientelistic systems, creating an environment in which real investment – domestic or foreign - is simply unappealing for anyone unwilling to themselves play the game.