The Constitutional Court is currently anti-Dayton, unconstitutional, non-existent, self-proclaimed, simply an alienated center of all power of a group of foreigners and domestic unitarians, emphasized Professor of Constitutional Law, Siniša Karan.
Reflecting on yesterday’s decision by the incomplete Constitutional Court of BiH to suspend the Election Law of Republika Srpska, Karan stated in a column for the News Agency of Republika Srpska – Srna, that the issue of the functioning and survival of the Federation of BiH, the issue of constitutional control of federal relations and the distribution of competencies, and the creation of a perception that the Dayton Constitution is a transitional solution, is becoming the framework for a substantial change of the Constitution de facto through the process of revision without changing a single letter.
Here is the column by Professor Karan as reported by Srna in its entirety:
The Constitutional Court of BiH has found itself in the role of an institution that will confirm and implement its “final and binding” decisions, the non-enforcement of which is criminally sanctioned.
Instead of protecting the Constitution, the Constitutional Court of BiH has taken upon itself the right to change it through interpretation (according to its own rules), making a revision of constitutional norms through linguistic and general interpretation, as well as the interpretation of the legal-political, unitarian milieu, with the help of international factors.
The Constitutional Court of BiH creates a framework for a new unitary state
The Constitutional Court of BiH, through its decisions, significantly changes the constitutional position of the entities in relation to BiH. At the same time, it has allowed itself to act beyond the reach and control of the entities that constitute the substantial being of BiH.
Instead of protecting the BiH Constitution, it dismantles the original constitutional principles through its decisions and creates a constitutional framework for a new unitary state, engaging in assessments of the political and discretionary nature of state organs’ decisions, their appropriateness, and their utility.
The Constitutional Court of BiH has no right to engage in the redistribution of competencies unless those competencies are unconstitutional, as it has no mandate to determine social relations and to assess and control legislative policy.
The Constitutional Court of BiH has not only exceeded its constitutional authority and entered the legislative sphere but has also provided new interpretations of all constitutional norms. This has led to the Court determining that the Preamble of the Constitution has the strength of a normative part, and based on that interpretation, it has made the gravest decision by completely reconfiguring the agreed principles through the decision on the constituency of peoples across the entire territory of BiH.
This destructive court, through “interpretation,” separates the constituency of peoples from territory, giving it a symbolic element of a pluralistic society while stripping the key role of peoples and territory in federal representation, misusing the provision on sovereignty, territorial integrity, political independence, and international subjectivity.
For the Constitutional Court, electoral units are territorial, not ethnic federalism, balancing between civic and ethnic elements and introducing them (contrary to the Dayton Agreement) into the structures of state power, separating ethnicity and territory, misusing constitutional norms on human rights, and presenting the composition of BiH (two entities and three constituent peoples) as a negotiation error, explaining that the entity is just a territory, another administrative part of local self-government.
The Constitutional Court of BiH is not a “super authority”
For the Constitutional Court, everything that is ethno-territorial has become discrimination (which is the only Dayton determinant and principle), performing de-ethnicization of the Serb adjective, declaring it an “enemy” of the civic state.
They also interpret that all competencies belong to BiH, with only some delegated to lower levels (entities), ignoring positive enumeration of competencies in favor of the entities, interpreting the principle of subsidiarity unilaterally in favor of the joint level, and numerous other unconstitutional and anti-Dayton actions.
The Constitutional Court is not a “super authority” or a “super-constitutional” body over other state, especially entity, organs (parliament, executive organs, and courts), to make decisions beyond the powers defined by the Constitution.
The Constitutional Court is not under social control by any institution of power at any level due to the practice it has adopted. Through its free action, it becomes the strongest asset in the hands of all proponents of a new constitutional reality contrary to the Dayton Constitution of BiH.
The Constitutional Court of BiH acts like the US supreme Court
The Constitutional Court of BiH, through its decisions, openly moves towards reconfiguring the complex federal state arrangement towards unitarism. The unconstitutional and violent transfer of competencies from the entities to BiH, confirmed by the Constitutional Court of BiH, goes exclusively in the direction of unitarization.
Contrary to the continental legal school of centralized judicial control of constitutionality and strict application of the constitution and constitutional procedures, the Constitutional Court acts like the US Supreme Court, which is a hidden legislator in the system of separation of powers.
The Constitutional Court of BiH, instead of applying already established rules to individual cases (European law), does the opposite – it determines rules based on individual cases (precedent-based Anglo-Saxon law).
With broadly defined competencies, the selection and composition of the Court (three are not citizens of BiH and without judges from Republika Srpska), it demonstrates the limitation of BiH’s sovereignty, but also undisguised unitarization and negation of the constituent Serbian people and entities.
The constitutional principle of federal representation in the Constitutional Court of BiH has been destroyed. The BiH Constitution respects the principle of federal representation in the Constitutional Court of BiH at the expense of the ethnic principle, but even that representation lacks protection in the decision-making process by a simple majority (three foreigners and two Bosniaks).
The Constitutional Court of BiH becomes a serious destabilizing factor, a return to original Dayton competence necessary
The Constitutional Court of BiH, through the constitutional framework of the “spirit of the constitution” through the prism of the unitarian-civic option, legal interpretation by the same principle, and creating constitutional practice with the aim of eliminating the basic Dayton constitutional determination of BiH as an ethno-civic complex state and entities as federal units, unceasingly leads to the complete dismantling of the being and constitutional structure of BiH.
The current factual action, without entity representation, further actions of foreigners, violation of constitutional competencies, complete absence of legitimacy and legality, has turned the Constitutional Court into an autocratic body with unforeseen consequences towards the absolute negation of the functioning of the entire state-legal and political system of BiH.
Building the position of the Constitutional Court of BiH as a constitutional creator, acting as a courtocracy and super-authority, becomes a serious destabilizing factor.
Therefore, the key to preventing further dismantling of BiH lies in the return of the Constitutional Court of BiH to its original Dayton competencies, and the adoption of the Law on the Constitutional Court of BiH is a condition for constitutional and legal stabilization, if it is at all possible to correct the damage already done.
Source: RTRS
