Concrete review of a norm

The notion of law, within the meaning of Article VI.3(c) of the BiH Constitution, is interpreted according to substantive and formal criteria. General acts (administrative acts regulating a large number of cases) are not to be considered the “laws” within the mentioned meaning.³⁵⁵³ Quite the contrary, the laws that were passed prior to the enactment of the Constitution of BiH (in the German terminology the so-called vorkonstitutionelle Gesetze) may be the subject of review.

The Constitutional Court, while relying on its own case-law relating to Article VI.3(b) of the BiH Constitution, deliberated on the issue of its competence ratione materiae to review the constitutionality of a law which entered into force prior to the enactment of the Constitution of BiH (Case No. U 55/02, paragraphs 19-22). In such a case the legislature, prior to the entry into force of the BiH Constitution, had “no opportunity” to harmonise the law with the new constitutional text. The case-law which is based on the principle ratione temporis, in conjunction with Article VI.3(b) of the BiH Constitution, is not applicable because of the fact that the laws in force at the moment of enactment of the BiH Constitution are not in contravention of the Constitution and therefore they remain in force (Annex II.2 to the BiH Constitution). On the one hand, the Republika Srpska, as a signatory party to the BiH Constitution, has recognised all the laws being in force by 14 December 1995 within the meaning of Annex II.2 to the BiH Constitution and, on the other hand, there is the BiH Constitutional Court, which, as a State-level body, is competent to review the constitutionality of law if needs be. Further, the Constitutional Court maintained that this interpretation has its foundation in the principles of legal unity and legal certainty. The system of concrete review has a very important role given the fact that legal uncertainty and legal disharmony are prevented by obligatory clarifications of divergences in judicial practice. Among other things, the concentration of these authorities (the constitutional monopoly) being assigned to the Constitutional Court should ensure that the courts comply with the laws. As to the fact that the courts in Bosnia and Herzegovina are not competent to conduct an incidental review of the constitutionality of a law, the Constitutional Court concluded that its authority also includes the laws that had entered into force before the enactment of the applicable Constitution and the goal is to provide full protection for the constitutional system in Bosnia and Herzegovina. In this reasoning, the Constitutional Court relies on the arguments presented in the German case-law and literature. However, for well-founded reasons, the BiH Constitutional Court has chosen an approach that is different from the approach of the German Federal Constitutional Court, which only accepts to conduct reviews of laws that entered into force upon the enactment of the Basic Law.³⁵⁵⁴

Taking into account the “legal continuity” provided for under Annex II.2 of the BiH Constitution (“to the extent not inconsistent with the BiH Constitution”), the Constitutional Court of BiH is almost challenged to review the constitutionality of laws that remained in force even after the enactment of this Constitution if someone submits a concrete or an abstract request for review of constitutionality. As for the general legal norms, the “responsibility” of the legislature for the constitutionality of some norm which was passed earlier is not that important, neither is “the possibility of its abolishment” if inconsistent with the constitution. Unlike the individual acts whose conclusively proven facts cannot be changed retroactively after the enactment of the Constitution, as to the laws that remained in force and whose effect continued after the entry into force of the Constitution, a review by the Constitutional Court is required, as well as the possibility of rendering unconstitutional provisions as invalid. To be precise, this task cannot be assigned to the lower courts with a mere remainder of the rule lex posteriori. Otherwise, the lower courts could be simply given the possibility not to amend such laws since they violate a higher ranked law, i.e., the BiH Constitution. Both principles are equally important. In fact, there is a problem in determining the contradiction between the law and the Constitution in order for some norm to be eventually abolished. If we properly perceive the basic aim of the Constitutional Court’s monopoly aimed at safeguarding the legal unity and legal certainty, which is the Constitutional Court’s view as well, then it is of no relevance whether the law was passed before or after the enactment of the Constitution. What is of relevance in this situation is the fact that the said law will be in force until it is abolished by the competent legislature or until declared unconstitutional by the Constitutional Court of BiH. Taking into account that Bosnia and Herzegovina is in the double process of transformation, facing enormous changes in the organisation of the State as defined by the Constitution of BiH, including changes in the economy and social sphere, the Constitutional Court cannot avoid playing the role of a safeguard of the new constitutional system nor the role of clarifying and resolving dilemmas in that regard.