For the past month and a half, almost on a daily basis in political confrontations among politicians, even involving the OSCE, it has been claimed that the OSCE has also failed to comply with the position of the Constitutional Court of Bosnia and Herzegovina, referring specifically to two decisions of the Constitutional Court of BiH: U-3/17 and U-23/14. It is not specified which positions of the Constitutional Court of BiH from these two decisions are not being complied with by the OSCE, nor is it explained what the Constitutional Court of BiH ruled on in those two decisions.

The hope of the Constitutional Court of BiH that politicians would stop manipulating its decisions was in vain. Thus, the Court did not initially respond. However, as the misuse of the Constitutional Court’s decisions continues, the Constitutional Court of BiH must remind the public that in Decision U-3/17, upon the request of Bariša Čolak, the then Chairman of the House of Peoples of the Parliamentary Assembly of BiH, it ruled on his request for review of the regularity of the procedure. It ruled on the request for determination of existence of the constitutional grounds for declaring the Proposal for the Law Amending the Election Law of Bosnia and Herzegovina of 28 April 2017, detrimental to the vital national interest of the Bosniak people.

The Constitutional Court established that the Statement of the Bosniak Caucus in the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina on destructive consequences upon the vital national interest of the Bosniak people in Bosnia and Herzegovina, met the requirements as to the procedural regularity under Article IV(3)(f) of the Constitution of Bosnia and Herzegovina. It further established that the proposed law did not violate the vital national interest of the Bosniak people in BiH.

In other words, this means that in this particular case, the Constitutional Court did not rule on a matter within its jurisdiction as defined by Article VI(3)(a) of the Constitution of BiH, that is, it did not assess the constitutionality of a law that was still in the process of being adopted and had not yet entered into legal force. Therefore, no one can claim that the Constitutional Court took a position on the constitutionality of the 2017 Proposal for the Law Amending the Election Law of BiH.

Specifically, with the aforementioned decision, the Constitutional Court acted within its jurisdiction under Article IV(3)(f) of the Constitution of Bosnia and Herzegovina, which means it examined only the regularity of the procedure in the case, that is, the procedure to be followed for the adoption of the Law Amending the Election Law of BiH. Therefore, those who “read and interpret” the decisions of the Constitutional Court of BiH should read the decision from beginning to end.

With regard to the second decision, namely Decision No. U-23/14, the Constitutional Court did rule on a matter within its jurisdiction under Article VI(3)(a) of the Constitution of BiH, that is, it ruled on the constitutionality of certain provisions of the Election Law of Bosnia and Herzegovina, which was in legal force. The Court found only that the provision of the law stating that “each of the constituent peoples shall be allocated one seat in every canton “Each constituent people shall be allocated one seat in each canton” was incompatible with the Constitution, as well as the provisions of Chapter 20 – Transitional and Final Provisions of Article 20.16A (2), items a-j of the Election Law of Bosnia and Herzegovina. These provisions regulated the number of delegates to be elected from each of the ten cantons.

And that is all the Constitutional Court of BiH ruled on in the aforementioned two decisions. The Constitutional Court, therefore, neither deliberated on nor has it made a decision on any of the issues that have recently been discussed in relation to the proposal for the Law to Amend the Election Law of Bosnia and Herzegovina.

For that reason, the Constitutional Court of BiH appeals to everyone, especially to politicians and those who claim not to be politicians but speak publicly on behalf of political agendas, to stop misusing the decisions of the Constitutional Court and the Court itself.

If anyone considers a law to be incompatible with the Constitution, the Constitution of BiH prescribes the procedure through which a decision of the Constitutional Court of BiH can be reached on that matter. They should request it, and the Constitutional Court will assess the constitutionality. However, to claim that the Constitutional Court has decided on something it has not deliberated on, becomes truly irresponsible and disrupts the already challenging work of the Constitutional Court of Bosnia and Herzegovina!

Seada Palavrić
President of the Constitutional Court of Bosnia and Hercegovina