(IN)DEPENDENCE OF THE LEGAL SYSTEM: MORALITY AND COMPETENCE
| Krug 99 (Circle 99) Sarajevo, Bosnia and Herzegovina Summary of Session of 10 March 2024 – 53 (IN)DEPENDENCE OF THE LEGAL SYSTEM: MORALITY AND COMPETENCE A modern democratic state, which means also Bosnia and Herzegovina in accordance with its Constitution, rests on the principles of the legal state and the rule of law. If this Constitutional principle is not to remain simply a “declaration on paper,” a division of authority is required into the legislative, executive and judiciary. The first unfulfilled precondition for balancing the three branches of government, which runs counter to the independence of the judicial system, can be observed in the fact that only judicial authority is not part of the Bosnian Constitution, though this is contrary to international standards. The current perception is of an endangered independent legal and judicial system, but relevant international expert analyses have pointed out a series of weaknesses connected with the issue of independence, morality and competence in the system. Lack of preventative measures and a systematic promotion of weaknesses in our society, common in all fields of public interest, rests on a tendency to look into exclusively consequences, rather than the root causes of problems. Witness the decades-long intensive concern about often tragic individual examples that are in fact only results of systemic weaknesses. These are indeed tragic examples, such as: fatal traffic accidents caused by hazardous driving, domestic family violence with fatal consequences, irresponsible management of public resources. As a rule, such cases do not lead to a broader public discourse about the causes of such tragic incidents, which would in turn, in the legal systems of democratic countries, lead to a change in the rules, practice or a strengthening of a repressive state apparatus. Such a hopeless situation rests on the lack of responsibility in all fields of society in Bosnia and Herzegovina, as well as on the decades-long fostering of the criteria of mediocrity at the expense of meritocracy (capable but not competent). The lack of responsibility carries consequences for the independence, morality and competence of the legal and judicial systems. Dysfunctional legislative and executive branches, authorized to pass laws that regulate social relations, create a society that is constantly “treading water,” so we are witness to repeated consequences. Such irresponsible behavior on the part of the authorities that should be functioning “for the people and in the name of the people” emanates from a system of interconnected fields of activity, including the judiciary. The key issue of an independent judiciary is that the principle of separation of the judiciary from the legislative branch of government be enshrined in law. This would include assuring financial independence and adequate pay for work, the nominating of judicial authorities by a regulated judicial body. And, nominating and promoting should be based on objectively qualitative criteria. Judicial authorities should enjoy full independence in their work, and a credible system of responsibility should be established among judicial authorities for their work that would inspire the public’s confidence in their integrity. So, what is the cause of the problems, if a majority of the above described criteria were to be adopted? First of all, quality and competence are not the only selection standards. In Bosnia and Herzegovina, the criterion of quality for nominating and promoting, as in a majority of cases in the public sector, is combined with the equally important factor of ethnic affiliation. Such an approach only discourages first-class experts. Secondly, the quality of competence is similarly conditioned on previous knowledge which is then examined at legal and judicial departments at the university level. The fact that Ministers of Justice, who are the main factors of executive authority and who are not necessarily lawyers, are the ones who decide in its entirety the conceptualization of judicial examinations, the schedule and the process of testing, tells us a lot about the competence and morality of the legal and judicial systems. The official international rank-listing of our universities, and even more so the lack of acquiring knowledge during the period of studies, likewise tells us something about the quality of our law schools. In the end, all of this has an impact on the quality of future judicial authorities, including more broadly other professions, such as lawyers, prosecutors and others. Third, there is the danger that the independence of the system, in a fragile democratic environment, can be applied as the absence of responsibility and isolation from an obligation to the state and to its citizens, which is the very reason for the establishment of a legal and judicial system in the first place. This means that the pathway to a catharsis in the system is the watchdog role of public opinion, including the media and critical voices from experts expressed in professional journals, public fora, media writings, as long as they are based on a responsible and objectively founded basis for discussion. Expressions of opinion that have shock value can still be published with the aim of improving the system, if they have proven contentions that are an objective foundation for a democratic culture. On the other hand, those that are unproven, or whose contentions are only partially based on objective criteria, can be fatal for preserving independence. It is especially problematic that in our environment public statements and activities of authority figures are often misused for the purposes of directly threatening the legal and judicial systems. Such behavior can lead to creating a picture among the public that it is permissible to undermine the authority of the legal and judicial systems . Finally, openness and transparency, to the extent possible, professionally inclusive discussions and articles on professional subjects and their analysis in appropriate bodies in the framework of the system, a proactive systematic approach – all of these things supersede the cause of problems. From nominating and promoting to disciplined responsibility and acceptance of the “watchful eye of public opinion” and the analysis by relevant voices with the aim of moving forward – all this represents the pathway out of the phase in which society currently exists, which is nothing more than defeatism and hopelessness. Morality in the legal and judicial systems, as a reflection of custom and of the spiritual condition of society, cannot be isolated from the general spiritual condition of society. Nevertheless, since the application of justice and legal norms is directly conditioned on competence and morality (ethics and integrity), of foremost significance is that this element become an integral part not only of the system of legal norms but also of every individual in that system. This means that implementable standards must be secured, so that they can guarantee that we do not enter into a system without objectively confirming these characteristics, which should then be constantly tested and every deviation from them sanctioned according to the highest adopted standards. ** Presenters: Tatjana Savic, Attorney from Bijeljina and Demirel Delic, Senior Legal Adviser at High Judicial and Prosecutorial Council of Bosnia ** Adil Kulenović, president |
| Association of Independent Intellectuals – Circle 99 (Bosnian: Krug 99), a leading Bosnian think-tank, was established in Sarajevo in 1993, in the midst of the Bosnian war (1992-1995), while the capital was under siege. Circle 99 provides a platform to bring together intellectuals of various professional and ethnic identities; university professors, members of the Academy of Sciences and Arts of Bosnia and Herzegovina, artists, journalists, entrepreneurs, diplomats, and other prominent figures from Bosnia and from abroad. Multidisciplinary discussions and initiatives are held each Sunday throughout the academic year, in the form of regular sessions about politics, science, education, culture, economy, and other societal issues. The overall goal is to sensitize the public towards a democratic transformation, achieving and maintaining peace, and integration of modern Bosnia into the community of countries fostering liberal democracy. Circle 99 has been declared an organization of special significance for the city of Sarajevo. |
