The Constitutional Court of BiH rejected the requests of Sefik Dzaferovic and Zeljko Komsic for the review of the constitutionality of changes to the Election Law of Bosnia and Herzegovina (BiH), as well as changes to certain provisions of the Constitution of the Federation. The Constitutional Court also decided this time that the amendments to the Election Law, which High Representative Christian Schmidt imposed on election night, were in accordance with the Constitution and the European Convention on Human Rights. However, questions are getting louder as to how far their jurisdiction extends.
Namely, the decision to reject the request of Komsic and Dzaferovic, which refers to the process of forming the government in the Federation of BiH (FBiH), was adopted with five votes and two dissenting opinions, and this is one of the exceptions in the judiciary in such a way that, in addition to the opinion of the majority, the position of judges who were outvoted is also heard. These two dissenting opinions have no significance in the announcement of the decision itself.
“The decision-making context sometimes does not have to correspond to the context in other countries, when the circumstances are quite common and standardized, so whatwould be unacceptable in Belgium and Switzerland, it is often accepted in BiH. Often in emergency situations, this can be a justification, even in this case, when it comes to the electionlaw,” believes expert in the field of constitutional law Nedim Ademovic.
The Constitutional Court often reviews decisions of the Office of the High Representative (OHR) and even annuls those decisions. We had a case with the statute of the City of Mostar when the Constitutional Court rejected the request of the then high representative Paddy Ashdown. However, there is a lot of ambiguity about the extent of whose powers, at least when it comes to the Constitutional Court and the OHR. This raises several questions: is it possible to evaluate the powers of the high representative, which, admittedly, are not clearly prescribed in the provisions of the Dayton Peace Agreement, and another, no less important question, whether the act imposed by the high representative is in accordance with Constitution of BiH.
“When the constitutionality of the Law on the State Border Service was considered in 2000, the Constitutional Court gave an answer to the question of whether it has the authority to review the constitutionality of acts because it was considered that, in a way, the high representative replaces the state institutions that should have pass acts instead of him,” Ademovic states.
Although it has the authority to review the decisions of the OHR, the Constitutional Court does not have the authority to enter into the very powers of the High Representative, as well as when to intervene. The issue of compliance with the United Nations (UN) Charter is also open, in which it is stated in several places that no one has the right to interfere in any way to intervene in sovereign country‘s issues related to internal politics.
“We will have many more problems regarding the activities of the high representative and the way in which we accommodate it, not only in the political reality of BiH, but, indeed, from the legal side regarding all those documents that define our life in BiH,” believes political analyst Adnan Huskic.
“The indicator that we have a high representative speaks of the fact that BiH is not a sovereign state and that someone else is deciding on our faith because we ourselves are unable to find a way out of this whole complicated case. In my opinion, the position of the Constitutional Court of BiH absolutely has greater value and should play the biggest role in this country, but it has not been filled,“ told journalist Zoran Kresic.
