The effect of the decisions of the Constitutional Court of Bosnia and Herzegovina on the changes in the organization of the authorities of the entities and Bosnia and Herzegovina: Has the Constitutional Court realized the role of protector of the constitution and constitutionality in Bosnia and Herzegovina?

Abstract

The decisions of the Constitutional Court of Bosnia and Herzegovina have significantly influenced the changes in the constitutional organization of the authorities and entities of Bosnia and Herzegovina (B&H). In the decisionmaking processes, the Court judges held diametrically opposed views, and the explanations of the Court's majority decisions were disputed in terms of both theoretical and legal aspects of the matter at issue. By passing the decision on the "constituent power of the people" on the entire territory of Bosnia and Herzegovina, the Constitutional Court of Bosnia and Herzegovina influenced significant changes in the constitutional organization of the authorities in the two B&H entities: Republika Srpska and the Federation of Bosnia and Herzegovina. The manner in which this decision was implemented is contrary to the provisions of the Constitutions of these two entities and the provisions of the Constitution of B&H. In effect, the amendments were imposed by the decision of the High Representative for Bosnia and Herzegovina. The High Representative acted as a constitutional and legislative authority, enacting laws which, against the will of the entities, established new competences and new institutions of Bosnia and Herzegovina and, thus, revised the Constitution of Bosnia and Herzegovina. By accepting the competence to assess the constitutionality of the laws passed by the High Representative for Bosnia and Herzegovina (both two decades ago and today), the Constitutional Court decided that they were in accordance with the Constitution of Bosnia and Herzegovina, thus giving legality to the activities of the High Representative and the new institutions of Bosnia and Herzegovina which do not exist in the Constitution of Bosnia and Herzegovina. The decision of the Constitutional Court of B&H influenced the change in the organization of the governing powers in Bosnia and Herzegovina. Therefore, the author concludes that the Constitutional Court of Bosnia and Herzegovina has not fulfilled its role as protector of the Constitution and organization of the authorities of Bosnia and Herzegovina and the two entities.