The Constitutional Court of Republika Srpska stated that granting excessive powers to any non-democratic institution that has not been established in accordance with a country’s constitution – in this case, the Office of the High Representative (OHR) in Bosnia and Herzegovina – undermines democracy, the rule of law, constitutionality, legality, and the legitimacy of the legal order.
In a document assessing acts adopted by the OHR, as well as decisions of other institutions that have implications for the constitutional framework of Republika Srpska and Bosnia and Herzegovina, the Court concluded that the practice of the High Representative imposing legal acts should end as soon as possible due to the harmful consequences it has produced.
The Court noted that the High Representative is not a constitutional institution under the Constitution of Bosnia and Herzegovina, nor are its position and powers defined by the Constitution. However, it argued that, through the incorporation of OHR decisions into the legal system, the institution has effectively assumed a constitutional role without constitutional legitimacy.
According to the Court, the Constitutional Court of Bosnia and Herzegovina has repeatedly treated laws imposed by High Representatives as laws of Bosnia and Herzegovina, while at the same time refusing to examine whether the High Representative had the authority to enact them. This approach, the Court argued, granted legal validity to acts that lack democratic legitimacy.
The document further states that imposed legislation often required the Parliamentary Assembly of Bosnia and Herzegovina to adopt such laws in identical form before making any amendments, effectively limiting the legislative authority of elected representatives and bypassing constitutional mechanisms designed to protect entity interests and vital national interests.
The Constitutional Court of Republika Srpska emphasized that Christian Schmidt’s actions represented the culmination of what it described as unconstitutional legislative activity by the Office of the High Representative. The Court specifically referred to Schmidt’s July 2023 amendments to the Criminal Code of Bosnia and Herzegovina, which introduced criminal liability for failure to implement decisions of the High Representative.
According to the Court, such measures transformed the High Representative into a de facto institution exercising legislative and even constituent powers without constitutional authorization, placing the office above elected institutions and democratic processes.
The Court concluded that the actions of the OHR, together with decisions of the Constitutional Court of Bosnia and Herzegovina and the Court of Bosnia and Herzegovina that uphold such interventions, undermine the principles of constitutionality, legality, and the rule of law while restricting the realization and protection of fundamental human rights and freedoms.
The Constitutional Court of Republika Srpska stated that both the Constitution of Republika Srpska and its professional responsibility oblige it to publicly present its observations on developments that affect constitutional order and legality.
Source: RTRS
