B. Article VI.1 (composition)

1. Composition

The Constitutional Court of Bosnia and Herzegovina shall have nine members.

(a) Four members shall be selected by the House of Representatives of the Federation, and two members by the Assembly of the Republika Srpska. The remaining three members shall be selected by the President of the European Court of Human Rights after consultation with the Presidency.

(b) Judges shall be distinguished jurists of high moral standing. Any eligible voter so qualified may serve as a judge of the Constitutional Court. The judges selected by the President of the European Court of Human Rights shall not be citizens of Bosnia and Herzegovina or of any neighbouring state.

(c) The term of judges initially appointed shall be five years, unless they resign or are removed for cause by consensus of the other judges. Judges initially appointed shall not be eligible for reappointment. Judges subsequently appointed shall serve until age 70, unless they resign or are removed for cause by consensus of the other judges.

(d) For appointments made more than five years after the initial appointment of judges, the Parliamentary Assembly may provide by law for a different method of selection of the three judges selected by the President of the European Court of Human Rights.

In addition to six national judges, pursuant to Article VI.1(b) and (d) of the BiH Constitution, the composition of the BiH Constitutional Court shall also include (at least on a transitional basis) three international judges, not elected by the domestic authorities, but by the President of the European Court of Human Rights. Still, prior to the election, the President of the European Court must consult with the BiH Presidency. The incorporation of an international element into the domestic Constitutional Court has never been disputable. Admittedly, the Russian representatives in the Contact Group in Dayton had explicitly opposed the appointment of international judges to the BiH Constitutional Court.²⁸⁷⁹ However, during negotiations their opposition had not drawn excessively great attention. There were some criticisms that BiH was losing its sovereignty as a result of the above-mentioned.²⁸⁸⁰ Appointing international judges to the highest court of the State is explained by an estimate of the Framer of the Constitution that this Court would have great significance in the difficult times after the armed conflict. When it came to the executive (the BiH Presidency and the Council of Ministers) and the legislative authority (the BiH Parliamentary Assembly), the Framer gave up any “anchoring” in the BiH Constitution of some element of international influence (this influence was subsequently, strongly and indirectly wielded through Annex 10 to the Dayton Peace Agreement). On the other hand, a guarantee was sought for the institutions, which ought to have enjoyed absolute neutrality, in order to ensure their independence from ethno-political influence. That guarantee was found by engaging international experts at the BiH Constitutional Court and the BiH Central Bank. More will be said about the role of the international judges in the second part of this text.

The position of domestic judges arises clearly from Article VI.1(a) of the BiH Constitution. They are elected on the basis of the federal²⁸⁸¹ – and not ethnic – principle of representation. Unlike, for instance, the BiH Presidency, Article VI.1 of the BiH Constitution does not mention in a single place that the proportionate representation of constituent peoples is necessary. Therefore, judges of the BiH Constitutional Court are not ethnic representatives of the constituent peoples of which they are members.²⁸⁸² Also, Article VI.1 of the BiH Constitution does not require that judges must in any way be members of one of the constituent peoples, or that they have to declare which people they are members of. Accordingly, under the BiH Constitution, it is not necessary for judges from the Federation of BiH to be Bosniaks or Croats, and for the judges from the Republika Srpska to be Serbs. Such requirements and conditions would not be in accordance with the principle of independence of judges.

In electing judges of the BiH Constitutional Court, what catches the eye is that the procedure is not within the jurisdiction of the State legislature, or of one of its houses, but within the jurisdiction of the Entity legislatures, notably, in the hands of the House of Representatives of the FBiH Parliament (four judges) and the National Assembly of the RS (two judges). Federal representation might be, also, indirectly exercised through an election procedure which would be within the jurisdiction of the State legislature. Namely, given that the BiH Constitutional Court, among other things, is called upon to review the essence of the work of its “sibling” authority (the legislature), a certain asymmetry is showing through in the system and manner of appointment of judges selected by the Constitution maker. Namely, on one hand, the State legislature is subject to the control of the BiH Constitutional Court, and, on the other hand, the State legislature does not have any influence whatsoever on the composition of the mentioned Court through the election of judges.

The election modus could be valued as a recognition of the special interests of the Entities. When it comes to a decision on the election of a certain judge from an Entity to the State Constitutional Court, this election, especially in the first years after the entry into force of the BiH Constitution, was determined by national rather than by federal criteria. That is best explained by the strict division of domestic judges to two Bosniaks, two Croats and two Serbs, which was so far considered completely normal and logical. This phenomenon, either way, is upheld also by the relevant provisions of the Entities’ Constitutions,²⁸⁸³ which stipulate that a judge of the BiH Constitutional Court shall be elected by a simple majority. The inadequate politicisation of decisions on the election of judges to the BiH Constitutional Court, along with concurrent disregard for the constitutional mandate of judges and the function of the BiH Constitutional Court, calls into question the independence of the Court, as well as the principle of division of authority as a central element of the principle of a legal state. The ethnically determined practice of the election of domestic judges to the BiH Constitutional Court violates Article VI.1(a) of the BiH Constitution in that this article does not stipulate that each constituent people shall have two positions in the BiH Constitutional Court; rather, it provides for a federal structure of the composition of judges elected by the Entities’ legislatures. One may find this unconstitutional practice also in the Rules of the BiH Constitutional Court. A certain number of provisions of the Rules, in contrast to Article VI.1 of the BiH Constitution, “forwent” the principle of federal representation in the BiH Constitutional Court in favour of ethnic representation. Accordingly, Article 42,

paragraph 2 of the Rules of the BiH Constitutional Court, present version,²⁸⁸⁴ stipulates that a session of the BiH Constitutional Court, in plenary, which is not attended by either of the judges from amongst one constituent people, shall be postponed, whereby, if the same situation takes place again without justified reasons, the next session will be held.²⁸⁸⁵ Article 90, paragraph 3 of the Rules of the BiH Constitutional Court, present version,²⁸⁸⁶ stipulates that the President and the Vice-President of the BiH Constitutional Court cannot be members of the same constituent people. Article 87 of the Rules of the BiH Constitutional Court, present version, reinforces this rule, which was not the case in the Rules of Procedure of the BiH Constitutional Court which had been in force earlier, by stipulating that the President of the Constitutional Court shall be elected by rotation of the judges from among the constituent peoples of Bosnia and Herzegovina. Article 83 of the Rules of Procedure of the BiH Constitutional Court, which had been in force earlier, by relying on the provision of Article VI.1 of the BiH Constitution, stipulated that the President of the BiH Constitutional Court should be elected by rotation from among the judges elected by the legislative authorities of the Entities of BiH. Article 87 of the Rules of the BiH Constitutional Court, present version, by introducing the criterion of ethnic representation, does not violate only the federal principle of the election of judges provided for by Article VI.1 of the BiH Constitution. This provision, eventually, makes it impossible for all persons who do not wish to declare their ethnicity, or who are not members of any constituent people, to perform the function of the President of the BiH Constitutional Court.

As a result of its hitherto and present composition, the State legislature would probably not be able to influence the modification of a collegiate body of the judges in the BiH Constitutional Court. For, even the composition of the BiH Parliamentary Assembly was characterised, and still is, by its primary ethno- political element. The population make-up of the Entities will most probably not change significantly in the foreseeable future, despite the process of return of refugees and displaced persons, so that the attitude of the Entities’ legislatures toward the election of judges of the BiH Constitutional Court will remain the same for some time to come. Contrary to this, at the State level one may expect an easy departure from the primarily ethnically determined policies, which – in the event of the transfer of competence for the election of judges of the BiH Constitutional Court from the Entities’ to the state level – could also have an effect on the composition of judges of this Court. In order to adopt a balanced case-law which would be above ethnic differences, it would be useful to consider the transfer of competence for the election of judges of the BiH Constitutional Court, in the process of constitutional reform, to the State level.

Judges shall be distinguished jurists, of high moral standing and reputation (Article VI.1(b) of the BiH Constitution). By doing so the Framer opted for a court of “jurists”, which, in any case, corresponds to the Yugoslav constitutional tradition. In other respects, the BiH Constitution itself does not stipulate additional conditions for the election of a judge of the BiH Constitutional Court either with respect to one’s age, or with respect to minimum professional experience. Accordingly, the judges of the BiH Constitutional Court do not have to have professional experience in the capacity of a judge. Judges appointed after the first line-up shall exercise this function until they reach 70 years of age. This provision ought to secure the independence of judges and the continuity of the case-law.