Addressing the status of the Constitutional Court of Bosnia and Herzegovina is considered by political representatives in the Republika Srpska to be the main condition for progress in reforms. So far, they have regularly problematized the decisions of the court, disputed its composition, tried to block the court by not electing judges. They want to replace foreign judges with domestic ones, and they put ethnic voting at the forefront of every reform proposal. It seems that the same is the case with the proposal that the SDS sent to the parliamentary procedure and that by urgent procedure. This party recalls the conclusions of the NSRS that no reform European law can be adopted until the law on the Constitutional Court of Bosnia and Herzegovina is adopted.
The Constitutional Court of Bosnia and Herzegovina has been a hot topic since the RS National Assembly issued an ultimatum. There are no reform laws without the Law on the Constitutional Court by which foreign judges leave their positions. Reform laws are adopted one by one. True, there is still no consensus on the Law on Courts, which Milorad Dodik said goes together with the Law on the Constitutional Court.
The opposition in the RS is dissatisfied with the non-implementation of the NSRS decisions, and the SDS proposed their own law for the session of the House of Peoples of Bosnia and Herzegovina. The composition of the Constitutional Court of Bosnia and Herzegovina would thus consist of nine judges – three from each constituent nation. The same as the proposal of SNSD and SDS in 2016.
“I believe that even today the SNSD representatives should have no reason not to allow this passage of the law to come on the agenda and, of course, to support it,” said Želimir Nešković, a delegate in the House of Peoples of Bosnia and Herzegovina (SDS).
However, SNSD has a different attitude this time. They say that more agreements are needed, although such a law is suitable for them.
“Even a below-average connoisseur of the political situation in Bosnia and Herzegovina is aware that such a solution is impossible without a broader political agreement in the PSBiH. That’s why I think that this kind of flight of SDS into that space that they think they have is not smart”, said Snježana Novaković Bursać, a delegate in the House of Peoples of Bosnia and Herzegovina (SNSD).
The president of Our Party, Edin Forto, says that he has no comment on the SDS proposal. While SDP president Nermin Nikšić confirms the earlier position of this party that ethnic voting in the Constitutional Court of Bosnia and Herzegovina is out of the question. Both the government and the opposition in the Federation are in agreement on the issue of the Constitutional Court of Bosnia and Herzegovina.
“The club will take a stand in the morning before the session. As a delegate, I am categorically against, because I am convinced that both the procedure and the content are in contradiction with the state Constitution”, said Dženan Đonlagić, a delegate in the House of Peoples of Bosnia and Herzegovina (DF).
“If you introduce ethnic voting in the Constitutional Court and if you exclude foreign judges from the Constitutional Court and introduce entity voice, ethnic and entity quorums, this practically means the abolition of the Constitutional Court of Bosnia and Herzegovina. It is no coincidence that the judges in the Constitutional Court of Bosnia and Herzegovina are foreign, they are the answer to the entity vote”, pointed out Šefik Džaferović, a delegate in the House of Peoples of Bosnia and Herzegovina (SDA).
And it is true that the European Commission requires the resolution of the issue of foreign judges, it is true that the Constitution of Bosnia and Herzegovina gives the possibility to replace foreign judges, but this is not prescribed as mandatory. Article 6 of the Constitution of Bosnia and Herzegovina foresees that five years after the first appointments, the Parliamentary Assembly may arrange another way of electing three judges, who for the time being are chosen by the President of the European Court of Human Rights. So far, this has not been done even 30 years after the signing of the Dayton Agreement, and experts in constitutional law also question the composition of the court based on ethnic criteria.
“The Constitutional Court of Bosnia and Herzegovina can be personally reformed through amendments to the Constitution of Bosnia and Herzegovina. This includes the possibility of replacing foreign judges with local judges. The law can only change the method of election of foreign judges, but not their replacement by domestic judges. If the constitution-maker decides on such a reform, all international standards for the functioning of a modern state must be respected. One of them is the total ethnic neutrality of the court. Therefore, members of the constituent nations with or without the ‘Others’ cannot sit in the Constitutional Court of Bosnia and Herzegovina”, explains lawyer and constitutional law expert Nedim Ademović.
The composition can be changed, but according to the Constitution. It is known that the Minister of Justice of Bosnia and Herzegovina, Davor Bunoza, will form a commission that should find a solution. Bunoza himself confirmed that the working groups will work on it after the vacations. However, while we are waiting for the decision of the ruling party, the opposition in the RS has prepared its own, although, judging by the statements, it is already doomed to failure.
