Abstract control of constitutionality

The provision of Article VI.3(a) of the BiH Constitution expressly stipulates the “provision of an Entity’s constitution or law” as the subject of the abstract control (review) of constitutionality. The groups mentioned in Article VI.3(a) of the BiH Constitution are not final, which clearly follows from the clause “including but not limited to”.²⁹¹⁷ Therefore, the groups in question have the character of an example of jurisdiction.²⁹¹⁸ Although Article VI.3(a) does not expressly indicate the laws of Bosnia and Herzegovina, the Constitutional Court also has jurisdiction to review such legal acts. On the one hand, this follows from the fact that the proceedings of abstract control (review) may be instituted by a member of the Chair of Deputy Chair of either Chamber of the Parliamentary Assembly.²⁹¹⁹ It is obvious that the starting point for the Constitutional Court is the view that the authorisation of these authorities makes sense only if the State laws may be challenged. On the other hand, this jurisdiction of the Constitutional Court rests on the fact that the BiH Constitution shall have priority over all other laws of Bosnia and Herzegovina under Article III.3(b) of the BiH Constitution.²⁹²⁰ In a later decision, the Constitutional Court did not give rise to the discussion of this jurisdiction.²⁹²¹ However, the Constitutional Court has clearly stated that not only certain provisions but the law as a whole may be the subject of a review of constitutionality.²⁹²² Finally, an additional argument in support of the Constitutional Court’s jurisdiction to review the State laws is an a contrario conclusion deriving from the provision of Article VI.3(c) of the BiH Constitution.²⁹²³ Based on the issues referred to the Constitutional Court by any other court in Bosnia and Herzegovina, the Constitutional Court may generally review the “laws”, not only the “Entity laws”. Therefore, there cannot be found a justified reason for denying the Constitutional Court jurisdiction to review the State laws under Article VI.3(a) of the BiH Constitution either.

Taking into account this system, the Constitutional Court interprets its jurisdiction quite correctly so as to limit itself to general legal acts.²⁹²⁴ However, these are not only the Entity acts but also State acts.²⁹²⁵ According to Article 17, paragraph 1, item 8 of the Rules of the BiH Constitutional Court, the Constitutional Court shall only review the legal acts in force.²⁹²⁶ According to Article 65, paragraph 2, in conjunction with paragraph 1 item 2 of the Rules of the BiH Constitutional Court, the acts which are no more in force may also be reviewed if there is a manifest violation of the provisions of Article II of the BiH Constitution,²⁹²⁷ or if the consequences of the violation of rights and fundamental freedoms have not been removed.

The first case in which the Constitutional Court reviewed the constitutionality of the provisions of the Entities’ Constitutions was Case No. U 5/98.²⁹²⁸ The fact that the Constitutional Court may declare provisions of the Entities‘ Constitutions invalid does not mean that Constitutional Court, in the case of the unconstitutionality of the provisions of the Entities’ Constitutions, has jurisdiction to “create new constitutional norms”.²⁹²⁹ The Constitutional Court’s jurisdiction to declare the provisions of the Entities’ Constitutions invalid also derives from Article XII of the BiH Constitution, which stipulates an obligation for the Entities to amend their respective constitutions to ensure their conformity with the BiH Constitution in accordance with Article III.3(b).²⁹³⁰ The judicial review by the Constitutional Court does not depend on the number of challenged provisions, nor is there any normative difference between the provisions and the “fundamental principles” of the Constitution.²⁹³¹ Therefore, the “fundamental principles” of the Constitution are also subject to a review. Each provision of the Entities’ Constitution may be the subject of review. However, the provisions of the State Constitution cannot be subject to the judicial review of constitutionality, since all provisions of the BiH Constitution are of the same normative level.²⁹³² Moreover, the GFAP can neither be subject to a review in respect of the Constitution of the Republic of Bosnia and Herzegovina. In Case No. U 7/97, the 1861 Croatian Law Party (Hrvatska stranka prava 1861) and the 1861 Bosnia-Herzegovina Law Party (Bosansko- Hercegovacka stranka prava 1861) claimed that the GFAP was in violation of Article 398 of the Constitution of the Republic of Bosnia and Herzegovina.²⁹³³ They further claimed that the GFAP undermined the integrity of the State and led to its disintegration (dismembratio). The Constitutional Court dismissed the request for review of constitutionality without giving an extensive reasoning but stated that “the Constitution of Bosnia and Herzegovina forms Annex IV of the General Framework Agreement. The Constitutional Court finds that the General Framework Agreement cannot, therefore, possibly contradict the Constitution of Bosnia and Herzegovina”. Moreover, “the Constitutional Court is not competent to evaluate the constitutionality of the General Framework Agreement in respect of the Constitution of the Republic of Bosnia and Herzegovina as the Constitutional Court has in fact been established under the Constitution of Bosnia and Herzegovina in order to uphold […] the Constitution”.²⁹³⁴

We agree with the aforementioned conclusion of the Constitutional Court. On the other hand, it has been made clear that the Constitutional Court, which was established in accordance with the BiH Constitution, cannot use the RBiH Constitution as a standard of review. Otherwise, the Constitutional Court would have to, based on the relevant provisions of the RBiH Constitution and Constitution of the Socialist Federative Republic of Yugoslavia, review the basis of its existence, including (in a way) the issue of revolutionary²⁹³⁵ evolution, i.e., rendering ineffective the RBiH Constitution through the BiH Constitution. Therefore, as the Constitutional Court of BiH was established on the basis of the applicable BiH Constitution (Article XII of the BiH Constitution), the Constitutional Court is the only body which is subject to the applicable Constitution. Moreover, the reference to the structural reasons deserves support, since the conclusion that the GFAP cannot contradict the Constitution under Annex 4 may be understandable only if the GFAP and its Annexes are regarded as a single international treaty. The fact that the Constitutional Court upholds such a view would become obvious through the Court’s later case-law²⁹³⁶ in which the Court, by referring to Decision No. U 7/97 declined its jurisdiction to review the consistency of the other Annexes with the Constitution (the other Annexes are not mentioned in Decision No. U 7/97). If the GFAP and its Annexes are regarded as a single peace treaty, possible inconsistencies can be resolved by the use of the usual rules relating to legal inconsistencies (Konkurrenzregeln), which derive from the principle of a single legal system (a treaty in this case). The system of terms “General Framework Agreement – Annexes” comes close to the hypothesis on their unity. However, by submitting strong arguments, the view according to which the Dayton Peace Agreement is in reality a “package” of independent international agreements regardless of the fact that the General Framework Agreement²⁹³⁷ binds them together. In that case, inconsistencies may appear at least in parts where the signatory Parties are not the same ones, as is the case with the General Framework Agreement and some of its Annexes. Anyhow, taking into account international law (consensual principle), it is correct that a body, which has been established on the basis of a treaty, does not have the jurisdiction and power (for example, judicial) to act in the field to which another treaty applies, unless otherwise expressly agreed.²⁹³⁸ This must also apply if the General Framework Agreement and its Annexes are regarded as a single treaty, the reasoning of which would be that the General Framework Agreement is not in any hierarchical relation to certain Annexes.²⁹³⁹ Taking the legal-international independence of individual annexes as a starting point, a possible inconsistency could arise between the BiH Constitution (regardless of whether it is regarded as part of the GFAP or not) and the RBiH Constitution, since the entry into force of the former is not regulated by the General Framework Agreement but by Article XII of the BiH Constitution.

General administrative acts cannot be reviewed regardless of whether these are municipal acts²⁹⁴⁰ or acts of the Entities’ Governments.²⁹⁴¹ The same applies to the book of rules and school statutes,²⁹⁴² decisions and contracts of public companies,²⁹⁴³ decisions of managing boards of public hospitals and administrative acts issued by the Election Commission under Article 2.9 of the Election Law of BiH.²⁹⁴⁴ The Constitutional Court is not called to put forward proposals for amendments to the Constitution,²⁹⁴⁵ nor is it called to give its advice or opinions or adopt views.²⁹⁴⁶ In Case No. U 37/01, the Constitutional Court, in accordance with Article VI.3(a) of the BiH Constitution, rejected the appeal, i.e., the request of a group of representatives for review, of a decision of the High Representative to remove Mr. Edhem Bicakčić from the office of Director General of “Elektroprivreda Bosne i Hercegovine” (“Electric Power of Bosnia and Herzegovina”), without giving reasons why, in fact, the review was not possible.²⁹⁴⁷