Entity symbols – the enemy of the return process

Following the adoption of the decision of the Constitutional Court on the restoration of names of towns, a path was created to further challenge the ethnocratically instrumentalised State symbols at the Entity level.

Two months after the adoption of the decision in Case U 44/01, in April 2004, Sulejman Tihić, the Chairman of the Presidency of Bosnia and Herzegovina at the time of filing the request, submitted a request for review of the constitutionality of the flag and coat of arms of the two Entities, as well as of the anthem of the Republika Srpska²³²⁹ with an explanation that these Entity symbols constitute racial discrimination against the members of ethnic groups not represented by the challenged symbols.²³³⁰

The applicant found the grounds for his request in the fact that, according to Articles 1 and 2 of the Law on the Coat of Arms and the Flag of the Federation of BiH, the flag and coat of arms of the Federation of BiH, as well as the golden lily and the red-and-white chessboard represent the traditional symbols of Bosniaks and Croats, respectively, in which case there is absolutely nothing in those symbols that the Serb people could identify themselves with.

On the other side of the Entity line, based on Articles 1 and 2 of the Constitutional Law on the Flag, Coat of Arms and Anthem of the Republika Srpska, the coat of arms and flag contained only the symbols and colours of Serb people. Pursuant to Article 3 of the Constitutional Law on the Flag, Coat of Arms and Anthem of the Republika Srpska it is stipulated that the national anthem of the Republika Srpska shall be “Bože pravde”, which originated in 1872 and in the text of this song the Serb people are glorified and prayers are sent to God to “unify the Serb brothers, to save the Serb king and the Serb lineage”.²³³¹ Even the National Assembly stated that “if the text of the anthem itself is examined, it must be admitted that it seems that it has racist and discriminatory character”. However that text, in their opinion, can be seen correctly only as an historical and obsolete document, as an inheritance of the past. Today there is neither a “Serb crown” nor “Serb lineage”. This text should not be understood as a political proclamation for the glorification of only the people of Serb origin, excluding all other constituent peoples but rather as “a transcendental imagination distant from the real contents”.²³³² The applicant considered that Article 3 of the Law on Use of the Flag, Coat of Arms and Anthem was discriminatory on racial grounds, according to which “the flag, the coat of arms and the anthem of the Republika Srpska shall be used […] in accordance with the provisions of this law, public order and moral norms of the Serb people […]”. That article, including the very Article 2 of the mentioned law, is in contravention of Article I.1 of the BiH Constitution (continuity of the international personality of BiH) and Article I.3 of the BiH Constitution (composition of the State). Accordingly, these provisions “constitute the state-hood of the Republika Srpska”.

The BiH Constitutional Court has met the applicant’s request. Taking into account the special political and temporal context in which the challenged provisions were voted for in the two Entities, it must be noted that the disputed Entity symbols are in violation of the principle on constituent status of peoples not represented by these symbols, that these peoples are discriminated against by the use of those symbols and that the said symbols are not in line with the obligation of the State “to engage in no act of racial discrimination”, in other words “to undertake effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists”, which is stipulated by Article 1.1 and Article 2(a) of the International Convention on the Elimination of All Forms of Racial Discrimination under Annex I to the Constitution of Bosnia and Herzegovina.²³³³ It is a legitimate right of the Bosniak and Croat people in the Federation of BiH and the Serb people in the Republika Srpska to preserve their tradition, culture and identity through legislative mechanisms, but an equal right must be given to the Serb people in the Federation of BiH and the Bosniak and Croat peoples in the Republika Srpska and other citizens of Bosnia and Herzegovina. It cannot be considered reasonable or justified if any constituent people have a privileged position in preservation of tradition, culture and identity as all three constituent peoples and other citizens of Bosnia and Herzegovina enjoy the rights and fulfil obligations in the same manner as provided for in the Constitution of Bosnia and Herzegovina and the Constitutions of the Entities. Moreover, it is of a particular importance that under the Constitution of the Federation of BiH and the Constitution of the Republika Srpska the identity of the constituent peoples, education, religion, language, fostering culture, tradition and cultural heritage are defined as vital national interests of the constituent peoples.²³³⁴