• Standpoint of the BiH Constitutional Court

The aforementioned decision on the Law on State Border Service (U 9/00) reads as follows:

“6. Thus, irrespective of the nature of the powers vested in the High Representative by Annex 10 of the General Framework Agreement for Peace in Bosnia and Herzegovina, the fact that the Law on State Border Service was enacted by the High Representative and not by the Parliamentary Assembly does not change its legal status, either in form – since the Law was published as such in the Official Gazette of Bosnia and Herzegovina on 26 January 2000 (OG of BiH, No. 2/2000) – or in substance, since, whether or not it is in conformity with the Constitution of Bosnia and Herzegovina, it relates to the field falling within the legislative competence of the Parliamentary Assembly according to Article IV.4(a) of the Constitution of Bosnia and Herzegovina. The Parliamentary Assembly is free to modify in the future the whole text or part of the text of the Law, provided that the appropriate procedure is followed.

7. The competence given to the Constitutional Court to “uphold the Constitution” according to the first paragraph of Article VI.3 of the Constitution of Bosnia and Herzegovina, as further specified by subparagraphs (a), (b) and  (c) and as read in conjunction with Article I.2 of the Constitution of Bosnia and Herzegovina, which provides that “Bosnia and Herzegovina shall be a democratic state, which shall operate under the rule of law and with free and democratic elections”, confers on the Constitutional Court the control of the conformity with the Constitution of Bosnia and Herzegovina of all acts, regardless of the author, as long as this control is based on one of the competences enumerated in Article VI.3 of the Constitution of Bosnia and Herzegovina.” (emphasized by authors).

The BiH Constitutional Court, in its later decisions on the requests for review of the constitutionality of laws imposed by the OHR, has limited itself to invoking its judicial practice in the Case No. U 9/00. The same happened in Decision No. U 16/00, in which the BiH Constitutional Court concluded that the disputed regulation (an occupancy right holder may obtain full ownership over the apartment only after two years of living in that apartment) was in accordance with the substantive constitutional law (right of ownership and prohibition of discrimination).³³⁷⁷ In Decision No. U 25/00, according to its previous case-law, the BiH Constitutional Court was not examining whether the High Representative, according to Annex 10, may amend an already existing law – the issue was about the Law on Travelling Documents.

“29. As to whether it was necessary for the High Representative to issue decision although there was the Law on Travel Documents adopted by the Parliamentary Assembly, it is an issue of legislative activity of parliamentary institutions of Bosnia and Herzegovina. Accordingly, the High Representative substituted for the domestic authorities within their constitutional powers. The Court has already given its opinion about the admissibility of the case (see above 22)”.³³⁷⁸

The applicants claimed that the High Representative had exceeded his powers, stating that it was not necessary to pass a new law.³³⁷⁹ However, the High Representative pointed that the so-called Bonn powers do not provide for any restrictions on the passing of a law, not even in the field where the relevant law already exists.³³⁸⁰ Subsequently, the BiH Constitutional Court repeated the same thing in its Decision No. U 26/01. The Law on the Court of BiH was declared unconstitutional in that decision. The mentioned law was examined from the aspect of whether a state has jurisdiction to establish such a court.³³⁸¹

In her separate dissenting opinion regarding the Case No. U 9/00, Judge Savić challenges the jurisdiction of the BiH Constitutional Court to examine the acts of the High Representative. In fact, she states that the decision of the High Representative on passing the Law on State Border Service is not a law within the meaning of the BiH Constitution. On the one hand, Judge Savić claims that the High Representative is not mentioned in the BiH Constitution at all, but that the basis for his activities is contained in Annex 10 to the GFAP. On the other hand, it is not sufficient that an act constitutes a law in substantive and legal terms. A decisive factor is the formal character of the law. However, in formal terms, this decision is not a law of BiH since it was not adopted within the prescribed procedure. The fact that it is published in the Official Gazette of BiH does not mean that the mistake has been corrected. The arguments under paragraph 6 of the Decision, according to which the Parliamentary Assembly may fully or partially amend the law in the future, are wrong. As to the law entering into force with immediate effect, the High Representative passed it on an interim basis explicitly until such time as the Parliamentary Assembly adopts this Law under its procedure without amendments and no conditions attached, the Judge concluded.

The BiH Constitutional Court has continued the mentioned judicial practice. By adopting its Decision No. U 6/06, the Court proved that its jurisdiction to quash laws is not only pro forma, related to the laws imposed by the OHR – it is obvious that the Court had its own interest in this regard. Upon the Request submitted by two members of the BiH Presidency, the Court quashed the provisions of the Law on Salaries and Other Compensations in Judicial and Prosecutorial Institutions at the Level of Bosnia and Herzegovina,³³⁸² which also regulated the salaries of judges at the BiH Constitutional Court and its expert legal personnel. The Court concluded that its independence was jeopardised (Article I.2 in conjunction with Articles VI.2(b) and VI.3 of the BiH Constitution). Moreover, the reduction of salaries during a term of office is contrary to Article IX.2 of the BiH Constitution.³³⁸³