Member of the House of Peoples Collegium of the Parliamentary Assembly of Bosnia and Herzegovina and a former politician of the Alliance of Independent Social Democrats (SNSD), Nikola Špirić, has targeted the Constitutional Court of Bosnia and Herzegovina as his new objective, clearly attempting to open up questions regarding this institution, which is crucial for the stability of the state.
“It would be beneficial for Bosnia and Herzegovina if, following Schmidt’s departure, the foreign judges of the Constitutional Court of Bosnia and Herzegovina were to withdraw as well, which requires the complete sobering up of political Sarajevo,” Špirić said.
Politicians from Republika Srpska, most notably from the SNSD, are the loudest in calling for a return to the “original”Dayton Agreement. They interpret this as the annulment of all post-war reforms, even though the “original” Dayton Agreement itself created the conditions for those very reforms.
What makes Špirić’s demand for the “withdrawal of judges” particularly hypocritical is the fact that the “original” Dayton Agreement explicitly states: “The Constitutional Court of Bosnia and Herzegovina shall consist of nine members. Four members shall be elected by the House of Representatives of the Federation, two members by the National Assembly of the Republika Srpska, and the remaining three members shall be selected by the President of the European Court of Human Rights after consultation with the Presidency.”
The Constitution provides the possibility for a law, adopted by the Parliamentary Assembly of Bosnia and Herzegovina, to change the method of selecting the judges appointed by the President of the European Court of Human Rights. However, the Constitution does not state that it is possible to change the natureof the judges, but only the method of their selection.
Therefore, the demand to remove foreign judges from the Constitutional Court of Bosnia and Herzegovina is effectively a demand to alter the Dayton Agreement. Opening this issue would inevitably drag in the resolution of many other questions that currently hinder the progress of Bosnia and Herzegovina.
One can also assume that RS politicians would approach this issue as if it were a smorgasbord, creating crises in institutions where straightforward blockades are not possible.
The ruling politicians from Republika Srpska tried to portray the recent UN Security Council session, Christian Schmidt’s departure, and the shifting stance of US policy toward Bosnia and Herzegovina as a major success of their own. This is despite the fact that, among other things, US Ambassador Tammy Bruce emphasized that respect for the decisions of the Constitutional Court of Bosnia and Herzegovina is prime proof of the state’s stability.
Although RS politicians hope that current geopolitical circumstances are favorable for launching an attack on this institution, namely, attempting to introduce a form of ethnic voting, this could turn out to be a double-edged sword. The pretext for reduced US engagement in Bosnia and Herzegovina is clearly the stability guaranteed by the Constitutional Court, and attacks on it directly undermine that very “stability.”
Špirić’s statement, which was given in the context of current political developments, hints at the policy priorities of the SNSD. However, the Constitutional Court of Bosnia and Herzegovina has long been a target of constant pushback through the disputing of its decisions, as well as the refusal of Republika Srpska National Assembly to appoint two judges, an obligation under the Constitution of Bosnia and Herzegovina and the Dayton Agreement.
At a conference organized by the Constitutional Court of Bosnia and Herzegovina, the court’s president, Mirsad Ćeman, highlighted this precise issue.
“Appoint the missing judges on time and do not allow anyone to call the legitimacy of the Constitutional Court into question. Do not let anyone, regardless of their motives, cast doubt on the constitutionality, legality, and legitimacy of the court,” Ćeman urged.
Judge Angelika Nußberger emphasized that the presence of foreign judges in the Constitutional Court is rooted in the Constitution of Bosnia and Herzegovina. She added that it is up to the citizens of the country to change the Constitution, and that the foreign judges would be the first to accept such a change.
The Constitutional Court: An Obstacle to Those Attacking Bosnia and Herzegovina Institutions
In an interview with Klix.ba, House of Peoples delegate and former member of the Presidency of Bosnia and Herzegovina, Šefik Džaferović, stated that the Constitutional Court has long been under attack by political forces that view it as an obstacle, precisely because its lawful operation in accordance with the Constitution stands in the way of their goals.
“And their goals are well known: reducing the capacity of Bosnia and Herzegovina’s institutions, secession, and other illicit activities. Therefore, this is nothing new. However, they must understand that the composition of the Constitutional Court of Bosnia and Herzegovina, its operational methods, structure, and jurisdictions are deeply intertwined with the other provisions of the Dayton Peace Agreement. Consequently, it is all part of the same package: the entities, the undivided state, the continuity of the Republic of Bosnia and Herzegovina, the entity structure within Bosnia and Herzegovina, and, of course, the Constitutional Court of Bosnia and Herzegovina, which is capable of fulfilling its duty to interpret and protect the Constitution as it stands,” Džaferović said.
He points out that while the constitutional system offers numerous loopholes for those wishing to abuse it through boycotts, blockades, and unconstitutional moves – the Constitutional Court was specifically designed to counter such scenarios.
“The Constitutional Court of Bosnia and Herzegovina is positioned within the Constitution and the Dayton Peace Agreement as a fully independent court. The only regulations concerning the Constitutional Court passed by Parliament are, in fact, the Constitution of Bosnia and Herzegovina itself. No statutory law is required for its functioning, nor is it possible to pass any law to regulate it. It operates directly on the basis of the Constitution, which grants the court the authority to adopt its own rules of procedure. This is what makes the Constitutional Court of Bosnia and Herzegovina so unique. Its differences compared to the constitutional courts of other countries are a direct consequence of, and a response to, our specific constitutional architecture. Anyone who thinks they can change the nature, character, and position of the Constitutional Court, or bind it to a law that dictates its conduct, must know that this tampers with the Dayton Peace Agreement. All mechanisms that threaten the functioning of the state must first be removed from the Constitution of Bosnia and Herzegovina before any such discussions can take place,” Džaferović warned.
He underscores that discussions are only possible through constitutional amendments—specifically those that would eliminate all mechanisms for boycotts, blockades, and any risks to the state of Bosnia and Herzegovina.
“If anyone thinks they can retain entity voting, the entities, and everything else, while changing the character and jurisdictions of the Constitutional Court of Bosnia and Herzegovina, they are upsetting the so-called Dayton balance, and that is simply not possible,” Džaferović stated.
He stressed the vital importance of preserving the current standing of the Constitutional Court, noting that this requires absolute unity among all pro-Bosnian political parties within Bosnia and Herzegovina.
“We have shown that we have unity, for instance, in the House of Peoples, within the Bosniak Caucus. Four political parties are represented there, and we acted as one when it came to the Constitutional Court of Bosnia and Herzegovina. This completely transcends the divide between the ruling majority and the opposition. This is a state issue, and a unified approach is absolutely necessary. There were attempts to alter the character of the Constitutional Court while keeping everything else the same. We, of course, viewed that as an unconstitutional proposal that represented an attack on Bosnia and Herzegovina, and it was subsequently withdrawn from the parliamentary procedure. However, because of that, we had to take action, we refused to attend the sessions because we believed that such a topic could not be open for discussion,” Džaferović said.
He underscores that delegates, representatives, or anyone else, cannot propose laws that tear down the state of Bosnia and Herzegovina, and then expect others to participate in debates over such legislation.
“We will not participate in discussions that dismantle the state. That was not a boycott, nor was it a deliberate withholding of a quorum. Such a topic simply cannot be placed on the agenda. Representatives and delegates have the right and the duty to propose laws, but they also have a clear obligation to ensure that those proposals align with the Constitution of Bosnia and Herzegovina and that the state of Bosnia and Herzegovina is respected. Anything that falls outside of that cannot be a topic of discussion, we did not consider it a valid topic, and that is why we did not attend the sessions. We stood united in that decision, four political parties, five of us. I think that for everyone within Bosnia and Herzegovina, this is an incredibly vital issue that can be discussed at great length, and unity is something that is absolutely indispensable,” Džaferović stated.
On Foreign Judges
Džaferović stated that regarding the foreign judges, who are appointed by the President of the European Court of Human Rights, he does not understand how anyone in Bosnia and Herzegovina could object to having individuals connected to the European Court of Human Rights in the structure of the Constitutional Court, especially since we want to become a European Union member state.
“When it comes to them and their position, the existing Constitution of Bosnia and Herzegovina provided the possibility that, five years after its entry into force, the Parliamentary Assembly of Bosnia and Herzegovina could regulate a different method for selecting these judges by law. Therefore, the text does not speak of the departure of these judges, but strictly about the method of their selection. Currently, they are appointed by the President of the European Court of Human Rights after consultation with the Presidency of Bosnia and Herzegovina. Consequently, the Parliamentary Assembly had the opportunity five years after Dayton to consider an alternative selection method, again, not their departure, but merely the manner of selection. However, it is obvious that the conditions for that have not been met either, given the constant attacks on the Constitution of Bosnia and Herzegovina, making it impossible to change even the method of their selection,” Džaferović said.
Džaferović emphasized that there can be no talks about them leaving the Constitutional Court, but only about the method of selection as prescribed by the Constitution.
“Through the law that was introduced into the parliamentary procedure, the circles that constantly attack Bosnia and Herzegovina are striving to change the character of the Constitutional Court and its decision-making process. Their goal is simply to tie the hands of the state when it comes to this vital institution. Therefore, the conditions for changing even the method of selection have not been met yet,” Džaferović concluded, Klix.ba writes.
