The member of the Presidency of Bosnia and Herzegovina (BiH), Zeljko Komsic, recently sent a request to the Constitutional Court of BiH to assess the constitutionality of the amendments to the Constitution of the Federation of BiH (FBiH) imposed by Christian Schmidt on October 2nd, with which the Court will, in part, decide on the same issue that it already ruled on in 2015.
In 2015, the Constitutional Court of BiH declared, among other things, the articles of the Constitution of FBiH and the Election Law of BiH that stipulate that only members of the constituent peoples can be elected to the position of president and vice president, but not members of the Others, as unconstitutional in the appeal filed by Komsic in 2012.
”The request of Zeljko Komsic, at the time of submission of the request by the member of the Presidency of BiH, is partially accepted. It is established that… Article IV.B.1. Article 1 Paragraph 2 (amended by Amendment XLI) and Article IV.B.1. Article 2 Paragraphs 1 and 2 (amended by Amendment XLII) of the Constitution of the FBiH, and Articles 9.13, 9.14, 9.16 and 12.3. of the Election Law of BiH… are not in accordance with Article II/4. of the Constitution of BiH and Article 1 of Protocol No. 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms,” it is stated in the judgment of the Court.
Although the Court declared the earlier provisions unconstitutional in 2015, it did not abolish them but concluded that it should first wait for the harmonization of the Constitution of BiH and the Electoral Law of BiH with the judgments (Sejdic-Finci, Zornic) of the European Court of Human Rights, that is, for the Parliament of BiH to adopt such changes.
”However, it is currently impossible to predict the extent of these changes. Therefore, the Constitutional Court will not abolish the aforementioned provisions of the constitution of the entity and the electoral law, that is, it will not order the Parliamentary Assembly of BiH (PABiH), the National Assembly, and the Parliament of the FBiH to harmonize the aforementioned provisions until constitutional and legislative measures are adopted in the domestic legal system to end the existing inconsistency of the Constitution of BiH and the Election Law with the European Convention established by the European Court,” the Court concluded.
More than seven years have passed since the verdict of the Constitutional Court on the aforementioned appeal, and nothing has been done in this regard.
However, the recently imposed amendments of the High Representative to the Constitution of the FBiH and the Election Law of BiH did not resolve the position of the Others regarding the election of the president and vice president of the FBiH, but only confirmed the existing discrimination.
In this regard, BiH Presidency member Zeljko Komsic submitted a new appeal in which he repeated the arguments from 2015, calling on the Constitutional Court to declare the new changes unconstitutional.
If the Court is declared competent, it is not so much uncertain whether the imposed parts of the amendments to the Constitution of FBiH and the Election Law of BiH will be declared unconstitutional, but whether the Court will change its position and give the Parliament of BiH six months to adopt the amendments necessary to abolish discrimination against Others.
In this regard, Christian Schmidt could, but obviously did not want to, implement the decision at least in the FBiH, because it is evident that with recent amendments he made major interventions in the Constitution of the FBiH and the Election Law of BiH, which were not required by any judgment of domestic or foreign courts.
An example of such an intervention is raising the number of necessary delegates in each caucus of the constituent peoples of the House of Peoples of the FBiH to almost 50 percent (11 out of 23) for the election of the president and vice president of the FBiH. Previously, a third was required within each caucus (6 out of 17). In terms of the scope and content of the changes, the High Representative favored only one side, Klix.ba reports.