D-Day: Constitutional Court of BiH "rules" on the (non)holding of the referendum in RS

At the 99th plenary session of the Constitutional Court of BiH, three agenda items will be considered: 1. Request for review of the decision of the Constitutional Court of BiH of November 26, 2015, Decision on the constitutionality of the Law on Holidays of Republika Srpska; 2. Information on the execution of decision number U 3/13 of November 26, 2015, and 3. Request for adoption of a temporary measure in case number U 10/16, Request for assessment of the constitutionality of the Decision on calling a republican referendum number 02/1-021-894/16 of July 15, 2016, writes the Patria News Agency.

Item 2 of the proposed agenda, a note from the Constitutional Court of BiH, will be considered depending on the decision that the Constitutional Court of BiH makes under item 1 of the agenda.

On July 15 this year, the National Assembly of RS, despite the decision of the Constitutional Court of BiH of November 26, 2015, which declared January 9 as an unconstitutional holiday, adopted a decision to call a republican referendum for September 25, where citizens of the smaller BiH entity were to express their opinion on marking this date as the Day of Republika Srpska.

The referendum question, according to the Decision of the NSRS, is: "Do you support January 9 being marked and celebrated as the Day of Republika Srpska?".

Before the NSRS adopted the Decision on holding the referendum, the Committee on Constitutional Affairs of the National Assembly of Republika Srpska, chaired by President Nedeljko Čubrilović, determined on June 17 this year the Request for review of the Decision of the Constitutional Court of BiH, which relates to the unconstitutionality of January 9 - the Day of RS.

-The request for review of the Decision of the Constitutional Court of BiH, which challenges the provisions of the Law on Holidays related to the celebration of the Day of Republika Srpska - January 9, was sent from the National Assembly of RS to the Constitutional Court of BiH for consideration after the Committee session, according to a statement from the National Assembly of RS.

The request asks the Constitutional Court of BiH to reconsider its decision and annul it.

After that, on August 24, the BiH Presidency member Bakir Izetbegović submitted a request to the Constitutional Court of BiH for the resolution of a constitutional-legal dispute with the entity of Republika Srpska due to the decision to call an entity referendum on the Day of RS, which the National Assembly of RS adopted on July 15, 2016.

Izetbegović asked the Constitutional Court of BiH to determine that the disputed decision of the National Assembly of Republika Srpska on holding the referendum is contrary to the Constitution of BiH and to annul the decision.

He further requests that the Constitutional Court oblige the NSRS to undertake all activities that will annul all decisions and activities based on that decision of the National Assembly of Republika Srpska.

Izetbegović requested the Constitutional Court of BiH to adopt a temporary measure suspending the application of the disputed decision of the National Assembly of Republika Srpska until a final decision by the Constitutional Court of BiH.

The Committee on Constitutional Affairs of the NSRS then requested on September 5 from the Constitutional Court of BiH to reject the request of the Chairman of the BiH Presidency Bakir Izetbegović, the Chairman of the House of Peoples of the Parliamentary Assembly of BiH Šefik Džaferović, and the Deputy Speaker of the House of Representatives of the Parliamentary Assembly of BiH Safet Softić, who requested that the decision to call a referendum on the Day of Republika Srpska be annulled.

The Constitutional Court of BiH has been under intense political pressure from politicians from RS in recent months, whose statements have heated up the atmosphere.

They insist that the judges of the Constitutional Court of BiH, in accordance with the request of the NSRS, review their decision from November 2016 and annul it.

What can happen at the session?

The judges of the Constitutional Court of BiH, if they accept the request of the NSRS and revise their own decision, will undermine their own dignity, and thus the significance of this highest judicial instance in the country.

If this happens, the referendum will not be held on September 25, and thus Milorad Dodik's policy will achieve victory.

The second scenario is that the judges of the Constitutional Court of BiH do not accept the request of the NSRS, which will open the door for Dodik to hold the referendum, the preparations for which are in full swing.

In such a scenario, the judges would then consider the information on the execution of the Decision of November 26, 2015, and then Izetbegović's request for a temporary measure suspending the application of the disputed decision of the National Assembly of Republika Srpska until the final decision of the Constitutional Court of BiH.

If the Constitutional Court of BiH were to adopt a temporary measure, then Dodik would again resort to holding the referendum.

Item 2 of the proposed agenda, a note from the Constitutional Court of BiH, will be considered depending on the decision that the Constitutional Court of BiH makes under item 1 of the agenda.

This means that if the Constitutional Court of BiH accepts the objection of the NSRS, there will be no need to consider item 2 of the agenda, but it will be stated that the Decision of the Constitutional Court of BiH has not been implemented within 6 months.

If it rejects the request of the NSRS, the Constitutional Court of BiH will order that the operative part of the judgment be incorporated into the Law on Holidays of RS. In that case, the Constitutional Court of BiH should submit a decision on execution to the BiH Prosecutor's Office, which, based on that, has the legal possibility to initiate criminal proceedings against persons responsible for not implementing the decision of the Constitutional Court of BiH.

PIC called on RS authorities not to hold the referendum, Russia supports Dodik

Members of the Peace Implementation Council in BiH, at their session held on August 30, adopted a joint statement with a dissenting opinion from Russia. Among other things, the statement stated:

-The Constitution of BiH unequivocally stipulates that the decisions of the Constitutional Court of BiH are final and binding, and that entities are obliged to respect the decisions of BiH institutions. In this context, the proposed referendum in Republika Srpska, which asks voters in RS to express their opinion on a matter already decided by the Constitutional Court of BiH, is destabilizing and raises political tensions, which constructively distract attention from the very serious economic and social challenges facing BiH. We call on the authorities of Republika Srpska not to hold the referendum.

Serbia does not support the referendum

On September 9, during talks with Dodik, Serbian Prime Minister Aleksandar Vučić said that Serbia does not support the referendum in Republika Srpska, while the President of Republika Srpska Milorad Dodik said that the vote on the Day of RS will be held if the Constitutional Court of BiH does not change its decision.