viii. Validity of the legal acts of the OHR upon the completion of the mandate

Given that there are expectations for the mandate of the High Representative to be completed in the medium term, a question that arises more often is whether his legal acts, particularly his individual decisions, such as deprivation of the right to be elected, will be valid. The representatives of the international community are concerned that the relevant domestic political circles could come up with a hypothesis (and be successful at it) that all of the acts of the High Representatives would cease to be valid once Annex 10 has been brought to a close. If we only come to think of the series of the laws imposed by the High Representative that the domestic legislature has not enacted as yet to this day, such legal consequence would prove fatal for Bosnia and Herzegovina. Also, the legal uncertainty which would be brought about thereby would be intolerable. Legislative coactivity between the High Representative and the domestic legislature is so closely interwoven that the abrupt cessation of validity of acts under Annex 10 would bring law practitioners before insolvable problems. The unsustainable hypothesis on the abrupt cessation of validity of the acts of the High Representative is anyway unjustified and ill-founded in legal terms. To be more precise, it is necessary to distinguish the following: in cases where the High Representative acted as a legislator, regardless of whether he imposed ordinary laws or amendments to the constitutions which are lower in rank than the Constitution of BiH, and where such acts were published in Official Gazettes, according to the position of the BiH Constitutional Court and the Human Rights Chamber, they are the domestic law regardless of whether they were consequently enacted by the competent domestic legislature. Thus, legislative acts of the High Representative published in the Official Gazettes shall be valid without limitations even after the Annex 10 of the GFAP has been brought to a close, and the domestic legislature may amend these regulations or render them ineffective in the appropriate legislative procedure.

It is much more difficult to answer the question whether the acts of the High Representative, in which he ordered individual measures, are valid. These acts, partly, have not been published in the Official Gazettes. No formula of substitution of the BiH Constitutional Court may be applied to them, so we cannot consider these acts as domestic law. Their unlimited validity appears problematic precisely in the cases where the High Representative has banned the damaged persons to exercise public offices until he has lifted the ban.³⁴³⁸ Unless the High Representative renders the respective acts ineffective before the end of his mandate, the consequences for the damaged persons would be a lifetime ban on exercising public offices. However, the High Representative, obviously partially and under the pressure of the debate about police officers that the IPTF had decertified, has started employing the practice of lifting certain bans by groups, i.e., in groups,³⁴³⁹ or individually.³⁴⁴⁰ This is where the High Representative enacted regulations that might be perhaps applied to other similar acts – and not only to the acts of the High Representative.³⁴⁴¹

Article 19.9.b of the Election Law of BiH recognises similar regulations in relation with permission for the political parties to participate in elections. The respective regulations are based on an idea that sanctions against certain persons, that were imposed on the grounds that the respective persons had thwarted the peace process, ought to be valid only during the mandate of the High Representative. Thus, for as long as this mandate is necessary, such sanctions, imposed in a state of emergency, shall be justified, and they should be valid up until the end of the mandate (at most). In analogy to this, it appears that it is possible to apply this ratio to similar acts of the High Representative, for instance to “the freezing” of bank accounts.

Space between the legislative acts and individual acts is filled with activities and measures of the High Representative, the legal nature of which are not so easy to define. An example for this is for instance the modification of the lawfully determined subject-matter judicial jurisdiction for a certain group of cases.³⁴⁴² If such measures, which in substantive and legal terms at the level of an ordinary law, have not been published in the Official Gazettes as yet, a question arises whether they are only of a transitional nature. It seems that it would be necessary, for the sake of legal certainty, to finally regulate this set of questions before the completion of the mandate.