In line with contemporary theories on the position and role of the constitutional adjudication in a democratic system, this study offers a comprehensive analysis of the role and performance of the Constitutional Court of BiH in the last twenty years. Numerous existing evaluations and analyses, being rather cursory and partial, have almost completely neglected the issue of the quality of work and decisions of this Court. Thus, we believe that the perspective provided by this study will contribute to a fuller understanding of the role of Constitutional Court in the constitutional and political system of BiH, as well as bring more arguments in the discussions on the present and the future of this immensely important institution in the context of Bosnia and Herzegovina.
One of the questions that have marked 2016 is certainly the related to the position and role of the Constitutional Court in the contemporary constitutional and political scenario in BiH. The decision on the Law on Holidays of the Republika Srpska, declaring 9th January as the day of Republika Srpska unconstitutional, served as a preface to series of attacks on the legitimacy and authority of the Constitutional Court of BiH and, likely, to the most difficult period in its history. Increasingly wide and intense accusations this institution has been dealing with range from the claims that the Court is imposing its will on the elected political representatives in BiH, through acting contrary to the interests of Republika Srpska, to the alleged inappropriate and unnecessary impact of the foreign judges in crucial cases. At the same time, arguments for such positions of the political actors are rarely put forward and even when they are – they are often based on a suitable and partial analysis.
The comprehensive study Court as a Policy-Maker?: The Role and Effects of the Constitutional Court of Bosnia and Herzegovina in Democratic Transition and Consolidation is thus far the most complete analysis of the work and performance of this important institution in BiH. It has been created as part of a wider regional research project, which, starting with the premise that constitutional courts in both theory and practice of other countries are framed and designed as important actors and facilitators of democratic transition, aims at evaluating to what extent, in what way and with what implications constitutional courts played that role in five countries of the former Yugoslavia – Bosnia and Herzegovina, Croatia, Kosovo, Macedonia and Serbia.
In the study on the Constitutional Court of BiH, Nedim Kulenović offers a quantitative and qualitative analysis of the work of this Court from the Dayton Agreement onwards, through identifying the key patterns of its performance and the areas in which it has impacted political constellation and political processes the most, as well as analyzing in detail the underlining argumentative strategies and theoretical concepts.
The study shows that the Constitutional Court of BiH indeed had an important role in the democratic transition and consolidation of BiH. At the outset, the quantitative analysis in fact indicates a relative restraint of the Constitutional Court of BiH when it comes to its tendency to annul the laws in situations when such practice was a reasonable option “within the available argumentative resources”. On the other hand, qualitative approach shows that the Court, especially in its first post-war term, has been activist in terms of strengthening the initially extremely weak central state by, among other things, legitimizing legislative and institutional interventions of the High Representative, which were directed thereto. Second important area of the intervention of the Constitutional Court of BiH refers to the political regime, that is, consociational power-sharing mechanisms, that the Court has sought to reconcile with human rights and the specific concept of the “collective equality” of the constituent peoples. In sum, even without any formal amendments to the Constitution of BiH, in the last two decades the country has undergone transformation and gained clearer features of a federation. The role of the Constitutional Court in those processes cannot be denied. Nonetheless, a more detailed analysis indicates that, in dealing with important cases, the Court has been oscillating between the apology of the weakness of the constitutional system and the utopia of the liberal democratic ideals on one hand, and the transitional reality on the other hand. In other words, the Court has showed not only activism and tendency to impose its own will to the decision-makers in BiH, but also restraint and readiness to uphold, considering and balancing other values and objectives, the laws and policies which might have been problematic from the perspective of the constitutional law and human rights.
This publication is produced within the project “Courts as Policy-Makers?: Examining the Role of Constitutional Courts as Agents of Change in the Western Balkans”, which is funded by the Regional Research Promotion Programme (RRPP). The RRPP is coordinated and operated by the Interfaculty Institute for Central and Eastern Europe (IICEE) at the university of Fribourg (Switzerland). The programme is fully funded by the Swiss Agency for Development and Cooperation (SDC), Federal Department of Foreign Affairs.
The views expressed in this publication are those of the authors and do not necessarily represent opinions of the SDC and the University of Fribourg.