Dodik and the National Assembly of Republika Srpska are restoring the Constitution of RBiH

By Sifet Kukuruz

If the National Assembly of Republika Srpska adopts the Constitution of that entity which repeals, annuls, or prohibits the application of the BiH Constitution on any part of the state territory, then this results in the continued validity and commencement of the application of the Constitution of RBiH. Upon the cessation of the BiH Constitution's validity, the application of the preceding Constitution, which is the Constitution of the Republic of BiH, continues.

The biggest proponents of restoring the Constitution of RBiH are Dodik and the NSRs

In such a situation, no formal decision is needed to continue the validity and application of the Constitution of RBiH. The sole condition for the commencement of the application of the Constitution of RBiH is the cessation of the BiH Constitution's validity.

It should be recalled that the Constitution of RBiH is not in force and is not applied solely because the BiH Constitution was adopted, is valid, and is applied. However, if and when the BiH Constitution ceases to be valid, the validity and application of the Constitution of RBiH will continue.

Given that the only reason the Constitution of RBiH is not applied is contained in the fact that the BiH Constitution was adopted and is applied, this means that upon the cessation of the BiH Constitution's validity, the validity and application of the Constitution of RBiH will be established.

By removing the BiH Constitution from legal life, the Constitution of RBiH is returned to legal life. The death of the BiH Constitution means the rebirth of the Constitution of RBiH, and in that situation, no decision as a formal legal act is necessary. In a situation where the BiH Constitution ceases to be applied (due to a forceful prohibition of its application), no formal decision on returning to the legal force of the Constitution of RBiH is necessary, because the exclusion of the BiH Constitution as a legal act from legal existence creates the preceding state.

For the understanding of this exceptionally important issue, the fact that the only legal limitation for the validity and application of the Constitution of RBiH is the application and validity of the BiH Constitution is crucial. When that legal limitation ceases to exist and be applied, it means that there are no longer any legal obstacles to the application of the Constitution of RBiH. Whoever removes this legal limitation from legal life through their actions, is in fact returning the Constitution of RBiH to legal life.

Article XII of the BiH Constitution stipulates that upon its entry into force, it "shall amend and supersede the Constitution of the Republic of Bosnia and Herzegovina," which also means that should the BiH Constitution cease to be valid, the Constitution of RBiH will continue to be applied.

If the legal act by which another, previously valid legal act, was repealed ceases to be valid, then the act that was repealed continues its validity. Upon the cessation of the BiH Constitution's validity, the legal limitation that excluded the Constitution of RBiH from validity and application ceases.

In essence, the eventual cessation of the BiH Constitution's validity would abolish the only legal limitation that prevented the validity and application of the Constitution of RBiH, and the cessation of such a legal limitation would result in the continued validity and application of the Constitution of RBiH.

The loss of the BiH Constitution means the gain of the Constitution of RBiH

Therefore, upon the cessation of the BiH Constitution's validity, the "legal life" of the legal limitation itself, which excluded the validity and application of the Constitution of RBiH, would be removed. In this way, the Constitution of RBiH would return to life without the adoption of a formal decision. This practically means that the legal limitation that excluded the validity and existence of the Constitution of RBiH would no longer exist, meaning there would be no more legal impediments or limitations to the continued direct application of the Constitution of RBiH.

Furthermore, this means that no decision is needed to continue the validity and application of the Constitution of RBiH; it is sufficient only to remove the BiH Constitution from legal existence, which was the cause of the cessation of the Constitution of RBiH's application.

When the BiH Constitution, which repealed the Constitution of RBiH, ceases to be valid, it means that the legal act that repealed the previously valid Constitution no longer exists, and consequently, the previously valid Constitution continues its legal existence, validity, and application. If the consequence ceases to exist when the cause ceases, then upon the cessation of the BiH Constitution's validity, which repealed the Constitution of RBiH, the only legal obstacle preventing the application of the Constitution of RBiH is removed.

Therefore, in the event that the BiH Constitution, as a subsequently adopted regulation, ceases to be applied, and the cause for this is not the adoption of a new state Constitution, then the Constitution that preceded that Constitution, which in this case is the Constitution of RBiH, continues to be applied. Given that no state can exist without a constitution, the principle of statehood and constitutionality continuity dictates that the Constitution previously repealed is returned to legal life, which is the Constitution of RBiH.

The legal connection between the Constitution of RBiH and the BiH Constitution can be compared to the construction of an artificial dam on a river, which regulates and redirects the water flow. By demolishing and removing the constructed dam, the water flow automatically returns to its natural course, and the water begins to flow in its former, natural path. No one's decision is needed to return the water to its natural flow, as the process itself has an inherent legality by which it unfolds.

The BiH Constitution and the Constitution of RBiH are in a relationship where one prevents the simultaneous application and validity of the other. The relationship between these two constitutions implies that the cessation of validity of one means the simultaneous commencement of validity of the other.

To the extent that these two constitutions cannot be valid and applied simultaneously, to that extent a state without a constitution cannot exist. If one is valid, the other is not, meaning upon the cessation of validity of one, the other begins to be valid and applied. This legal relationship between these two constitutions reflects their legal dialectic.

In this regard, there can be no doubt that upon the cessation of the validity and application of the BiH Constitution, the Constitution of RBiH is automatically reactivated. Therefore, those who wish to destroy the state of BiH should know that by their destructive actions, they are doing the exact opposite. With the return to force of the Constitution of RBiH, not only the BiH Constitution ceases to legally exist, but also the entities themselves.