Constitutional disputes

The provision of Article VI.3(a) of the BiH Constitution seems at first sight to connect the abstract control (review) of constitutionality, one the one hand, and on the other hand federal disputes and disputes between the State authorities so as to considerably restrict its application. As it appears from the linguistic interpretation, it is necessary to have a dispute between the aforementioned territorial-administrative units and institutions even when it comes to the abstract control (review) of constitutionality.²⁸⁹⁷ Similarly, the norm implies that the federal dispute or dispute between the State authorities represents also the abstract control (review) of constitutionality. And, vice versa, the abstract control (review) is only possible if there is a particular dispute.

Viewed conceptually, the necessity of connecting federal disputes or disputes between the State authorities and abstract control (review) of constitutionally does not make sense. When it comes to the first case, the Constitutional Court deals with the rights and duties of the State towards the Entities and, vice versa, between the Entities themselves, and with the scope and extent of responsibilities of certain authorities. One cannot establish a justified reason why, for example, the review of a law which unconstitutionally restricts a human right or freedom must indispensably depend on the existence of a dispute between the aforementioned Entities or State institutions. An authorised applicant’s doubt (Article VI.3(a), second sentence thereof) about the constitutionality of a law is enough. The enumeration of authorities and institutions in Article VI.3(a) (first sentence thereof) cannot be understood as imposing limitations on the authorised applicants with regard to the abstract control (review), since they are enumerated by name in Article VI.3(a), second sentence thereof. Therefore, the jurisdiction of the Constitutional Court is regulated in Article VI.3(a), first sentence thereof, in the manner that the Constitutional Court resolves federal disputes and those between the State authorities regardless of the jurisdiction to institute proceedings of abstract control (review) of constitutionality.

This is also importance for the political involvement of the international personalities in Bosnia and Herzegovina. If a dispute between the aforementioned territorial-administrative entities and “institutions of Bosnia and Herzegovina” (which, surely, do not include the OHR, OSCE and others) is not needed, then the request for a review of constitutionality with a terse reasoning stating that it is not a dispute between the “institutions of Bosnia and Herzegovina’ cannot be rejected if an international personality participates in State power in a particular situation. A different conclusion would apply in the case of a dispute between State authorities: based on the linguistic meaning of the provisions of Article VI.3(a), first sentence thereof, the Constitutional Court would not have jurisdiction to decide the scope of responsibilities of other institutions, except those which are conferred to an Entity or Bosnia and Herzegovina.