The Constitutional Court of Bosnia and Herzegovina has no jurisdiction to assess the constitutionality of political acts, positions and proclamations made by the Assembly of the Republic of Srpska,” said President of the Parliament Nedeljko Čubrilović.

As it happens, everybody in the Republic of Srpska believes that the judges have made another “political decision” by repealing certain provisions of the conclusions and declarations of the Assembly of the Republic of Srpska, which had to do with returning to the entity level the competencies previously transferred to the Bosnia and Herzegovina level in the fields of justice, indirect taxation and the army.

Banja Luka attorneys, however, do not understand what led to the level of paranoia where suddenly the opinions of assembly members are being qualified as unconstitutional, knowing that these were non-binding acts passed by the Republic Parliament at its session on December 10 last year.

Apart from the fact that the May 21 decision of the highest legal instance is being perceived as a new precedent, it also raises some other questions. Namely, the position of the judges in Bosnia and Herzegovina, at the first glance, is already contradictory to the position taken by the International Court of Justice (ICJ) in the case of Kosovo’s unilateral declaration of independence.

That court made the excuse that it could not assess whether the declaration was consistent with the international law, and instead chose to check whether it was inconsistent with the international law, that is, whether there was an existing international rule which in principle bans someone somewhere from declaring independence — no matter who they are and what titles they hold — only to conclude that there was in fact no such ban.

Can Banja Luka then do something that is not banned — think and speak for itself, without first asking some court whether it is allowed to say or proclaim something? Unless someone has explicitly banned such a right somewhere in the meanwhile, which they did not, then the Constitutional Court of Bosnia and Herzegovina would have to, per the ICJ analogy, say where, per which law, in which organ, and above all, whether the Constitution of Bosnia and Herzegovina has adopted an existing rule that Banja Luka was not allowed to do something.

Expert opinions will undoubtedly be split on this issue, seeing as the interpretations of the ICJ decision in the case of the unilateral declaration of independence also differ.

Some domestic experts have argued that the ICJ has introduced a significant measure of doubt in the validity of the decisions brought by the organ that made the declaration of independence. Thus, in the recent decision of the court in Sarajevo to repeal certain conclusions and declarations of the Assembly of the Republic of Srpska, Professor of Constitutional Law Siniša Karan sees “an indirect confirmation of the BiH Constitutional Court that the entities have a constitutional right, so far persistently disputed, to initiate the procedure of withdrawing consent to the prior transfer of competencies”.

The Constitutional Court has been notified that the Assembly of the Republic of Srpska acts that Bosniak representatives had complained about, and that the judges chose to acknowledge this time, were not legally binding, so the Republic of Srpska Parliamentary Committee on Constitutional Affairs clarified that the conclusions and the declaration present political positions and are not legal acts — laws or decisions — either in the formal or substantial legal sense.

“The Constitution of Bosnia and Herzegovina clearly defines that the jurisdiction of the Constitutional Court of Bosnia and Herzegovina is to assess the constitutionality of legal acts, more precisely, that the Court determines whether certain provisions of an entity’s constitution or laws are consistent with the Constitution of Bosnia and Herzegovina. Keeping that in mind, the Constitutional Court should have declared the consideration of these acts to be outside of their jurisdiction,” noted Nedeljko Čubrilović.

The fact that the Constitutional Court of Bosnia and Herzegovina earlier in its practice had taken a position where it declared the consideration of any acts that were not constitutional or legal in character to be outside of its jurisdiction only speaks to the fact that this is a new precedent, again made at the expense of the Republic of Srpska. Namely, in 2009, resolving Sulejman Tihić’s request to assess the constitutionality of a resolution of the National Assembly of the Republic of Srpska, this court made the decision that the assessment of constitutionality in this case was not in its jurisdiction as the resolution was not of a legally binding character. A “confusion” not unlike this one also arose when the Constitutional Court declared invalid a referendum held in the Republic of Srpska where 99% of Srpska citizens voted that they wished to observe January 9 as Day of the Republic, which the Bosniak parties disputed before the same court.

Even then, it was unclear to attorneys and most of the public how the opinion of citizens could be disputable, unconstitutional or problematic from a legal standpoint, and why were the Serbian people being denied the right to vote on any topic.

Even then, the public was deprived of a coherent answer as to why citizen polling in a referendum and their position — whatever it was and whatever the topic of the referendum was — was being brought into question, knowing that only the activities of the executive or legislative authorities that would act on a referendum may potentially take on an unconstitutional character.

The declaration and the conclusions whose parts were repealed by the Constitutional Court a few days ago were about the possibility of retracting consent for establishing joint institutions in the military, taxation and judiciary fields, by suggesting that the specific binding acts on the matter would be passed by the Government or the Assembly of the Republic of Srpska.

Among other things, probably acting on a rash intention to cut it all off at the root — or in a panic like in the referendum case — the Constitutional Court challenged the part of the Declaration on Constitutional Principles, where the assembly members expressed an opinion that the Government or the Assembly of the Republic of Srpska “had the right to stop the implementation of any act or activity of the organs and institutions at the Bosnia and Herzegovina level, which are not based in the Constitution of Bosnia and Herzegovina and explicitly determined by the Constitution to be within the jurisdiction of the organs at the Bosnia and Herzegovina level”.

Referring to the Constitution of Bosnia and Herzegovina has been declared unconstitutional this time as well, lawyers concluded ironically.