The vote on the draft Law on the High Judicial and Prosecutorial Council (HJPC) of the Republika Srpska (RS) in the National Assembly of RS (NARS) brought new legal and political moments in Bosnia and Herzegovina (BiH), which some legal experts call a path to legal chaos and anarchy. What does this situation mean for the functioning of judicial institutions in legal terms, is it a threat to the constitutional order, who should take measures to protect the constitution, and what is the solution to the current situation, it will be explained by the President of the HJPC of BiH, Halil Lagumdzija.
Unauthorized attempt to use jurisdiction by the entity
What does the adoption of the Law on the HJPC of the RS mean in legal terms, Mr. Lagumdzija, and what are the possible legal consequences?
”The situation you are pointing to – the adoption of the Law on the HJPC of the RS – is in the field which is completely outside the legally allowed reasoning. In the legal sense, this is a unilateral, unauthorized attempt to use competencies by the entities, which has already been transferred to the level of BiH institutions in accordance with the procedure prescribed by the Constitution of BiH. The Constitutional Court of BiH, whose decisions according to the letter of the Constitution of BiH are final and binding, has already emphasized in its practice the decision U-11/08 that state competence cannot be transferred to the entities, since the Constitution of BiH does not recognize such an institution. This means that if the entity competence has become a state competence on the basis of an agreement according to Article III/5.a of the BiH Constitution, then such competence can no longer be returned to the entities, especially not unilaterally.
To conclude, an identical issue has already been considered by the Constitutional Court of BiH in case U-14/04, when the Entity Agreement on Competences in the Field of Indirect Taxation was signed on the same basis as for the HJPC BiH – competence in the field of indirect taxation was transferred from the entity to the level of central authority, ie state. At that time, the only difference was that the Federation of BiH (FBiH) acted contrary to the transferred competence in order to regulate in one part the area that was transferred to the level of the central government. At that time, the Constitutional Court of BiH clearly said that the Parliament of the FBiH violated the provision of Article III/5.a of the Constitution of BiH since it entered the scope of competences previously transferred to the state of BiH.
The HJPC BiH is in charge of ensuring an independent, objective, and professional judiciary
But Mr. Lagumdzija, how will this decision affect the judicial institutions at the state level, especially due to the fact that there is no possibility of filing any appeal until this law enters into force?
”That is legally inconceivable because such a move would lead to the establishment of parallel judicial structures, which is unsustainable in a state governed by the rule of law. In fact, such a move would lead to the official introduction of legal anarchy and the collapse of the judicial system, which would have serious repercussions primarily on citizens’ rights to the rule of law, legal security and the rule of law, which is why, to remind all, the unique HJPC of BiH has been established, and it is a leader in many processes in the regional framework as an institution, with all the challenges we face.”
E.Dz.
Source: Avaz
