Why Constitutional Court of B&H has not been Constituted

Distant Dayton Signatures

AIM Sarajavo, 9 April, 1997

The Council of Ministers of B&H elaborated a draft law on foreign trade and customs policy which caused numerous dilemmas. Starting from the one to what extent the mentioned law from Bildt's package is actually in compliance with the Dayton accords, to the one whether by collecting customs duties on the level of entities it indeed contributed to further dissolution of state functions of B&H.

In the series of interpretations about foreign trade and customs which followed, there is the one given by Hasan Muratovic, Minister of foreign trade and economic relations in the Council of Ministers of B&H, "that the mentioed issues are not explicitly resolved by the Constitution" and that they can be interpreted "this way and that". In other words, until the Constitutional Court of B&H is established, the High Representative is the one who arbitrates, so Carl Bildt accordingly wrote that income made by collecting customs duties belonged to the entities.

However, the Constitutional Court of B&H which should defend and interpret interests of B&H, is one of the state institutions which has not been established yet, not even 500 days after signing of the Dayton accords. In view of the problems which have, for instance, appeared in connection with elaboration of the mentioned draft customs law, it can be expected that the Constitutional Court of B&H will finally be established at the next session of the Chamber of Representatives of the B&H Parliament. In other words, it can be expected that nine members of this institution will take oath of allegiance and make the beginning of their work official. Especially because the Dayton peace accords do not precisely prescribe who will convene and constitute the Constitutional Court of B&H, so in compliance with the experience, the state parliament is expected to do it, as it was the case with inauguration of members of the Presidency of B&H.

The federal parliament, however, at its last session, completed the procedure of election of federal judges for the Constitutional Court of B&H. Along with two judges from Republica Srpska and three representatives of the European Court for human rights nominated four months ago, as representatives of the Federation, this job will be done by Kasim Begic, Ismet Dautbasic, Zvonko Miljko and Mirko Zovko.

But, "the Constitutional Court cannot begin work, although a considerable number of problems from its sphere have accumulated, until the judges pledge allegiance" stresses Ismet Dautbasic, one of the future judges of the Constitutional Court of B&H, and adds that obstacles concerning "who the oath of allegiance should be taken to and what should the text of the oath say" should be eliminated as soon as possible, and large help in it is expected from the Office of the High Representative again.

According to the words of Dautbasic, the Constitutional Court "could have been constituted before, even before the Presidency of B&H, because there had been no major obstacles, in view of the fact that even its rules of procedure had been prepared". It should be added, though, that the rules of procedure had four variants...

Why constituting of the Constitutional Court of B&H has become the burning issue in the country, and why there is hesitation with the beginning of its operation, is perhaps best explained by the recent controversial agreements between Republica Srpska and FR Yugoslavia which belong in the sphere of competence of the Constitutional Court of the state.

It is in the exclusive jurisdiction of the Constitutional Court of B&H to decide about any dispute concerning the Constitution or between the entities, or between an entity and institutions of B&H, including - but not limiting oneself to, whether a decision of an entity on, for example, establishing special parallel relations with a neighbouring state were consistent with the Constitution of B&H. Provisions which refer to sovereignty and territorial integrity of B&H are indicated in the Dayton accords which have prescribed that decisions of this Court be final and legally binding. However, no instruments and ways for implementation of decisions of this Court have been prescribed...

"The question of implementation of decisions of the Constitutional Court of B&H could be resolved by amendments of constitutions of the entities, and the Constitution of B&H, according to which decisions would be implemented by the governments of entities, and the Council of Ministers, respectively", Dautbasic believes.

Hoåe li se, i kada, konstituisati Ustavni sud BiH, joþ je nepoznanica. Nepobitna je, pak, činjenica da bi se njegovim startanjem počeli rijeþavati brojni problemi i situacije koje nisu u skladu sa Ustavom BiH, a kojima se kontinuirano koči proces reintegracije drºave. Znajuåi koliko aktuelne vlasti bh. entiteta "vole" Daytonski sporazum kojeg su bile prisiljene potpisati, status quo Ustavnog suda BiH vjerovatno im daleko viþe odgovara.

Whether and when the Constitutional Court of B&H will be constituted is still a mystery. It is however, undoubted that resolving of numerous problems and situations which are not in compliance with the Constitution of B&H and which continuously slowed down the process of reintegration of the state would begin if it started operation. Knowing how "fond" of Dayton accords the current authorities of B&H entities are, having been forced to sign them, it is obvious that the status quo concerning the Constitutional Court of B&H suits them much better.

Mirjana MICEVSKA