Is the BiH Constitutional Court's Statement an Act of Legal Pressure and Violence: Constitutional Judges of the Federation Must Remain Objective!

By: Rasim Belko @rasimbelko

A few days ago, the Constitutional Court of Bosnia and Herzegovina issued a statement regarding the opinion of the Venice Commission, emphasizing that it cannot be interpreted as a stance on the issue of the recent election of constitutional judge Marin Vukoja.

This statement comes at a sensitive time when decisions from the Constitutional Court of the Federation of BiH concerning the process of Vukoja's election in the Parliament of the Federation are expected. The question arises whether this statement represents undue pressure on the judges of the Constitutional Court of the FBiH.

Furthermore, what if an appeal regarding Vukoja's election reaches the Constitutional Court of BiH? Does this mean that the judges, led by Sead Palavrić, have already made a decision?

Also, the question arises whether someone asked the Constitutional Court to comment on the Venice Commission's opinion. If so, then it is acceptable to state who, rather than the Constitutional Court of Bosnia and Herzegovina and its president Seada Palavrić acting like some local sheriffs.

There is no doubt that the statement is a direct message to the judges of the Constitutional Court of the Federation, who face one of the most important decisions they will make in this term. Palavrić, the judges, and their known advisors clearly intend to prevent an unfavorable decision for those forces that elect constitutional judges against common sense, the rules of this country, and the rules of the European Union.

The Venice Commission, an advisory body of the Council of Europe for constitutional matters, has given its opinion which has attracted public and legal expert attention. However, the Constitutional Court of BiH reacted quickly, emphasizing that this opinion is neither binding nor final regarding the election of judges. Although the statement attempts to clarify the legal position, its timing and tone open the door to doubts about the real intentions.

It is evident that the President of the Constitutional Court, Palavrić, as well as other judges, want to force the correctness of Vukoja's election at all costs, disregarding the rule of law, i.e., the violation of procedures. It is unprecedented for the Constitutional Court of a state to exert such pressure on the Constitutional Court of a lower administrative unit and, in the process, mock the rule of law.

Analysis of the Statement

The timing of the statement comes just before the expected decisions of the Constitutional Court of the FBiH regarding the election of judge Vukoja. The tone of the statement can be interpreted as suggestive, which can raise doubts about the real motives behind its publication. This raises the question of whether pressure is being exerted on the judges of the Constitutional Court of the FBiH to make a decision in line with certain expectations.

In its statement, the Constitutional Court of BiH says: “The Federation of Bosnia and Herzegovina recently, in accordance with the Constitution of Bosnia and Herzegovina, elected a new judge who has already taken office. The latest opinion of the Venice Commission regarding the request of the member of the Presidency of BiH Željko Komšić, which provides recommendations for future judicial elections, cannot be interpreted as the Venice Commission's stance on the 'unconstitutionality' of this latest election. The election was conducted in accordance with the Constitution of Bosnia and Herzegovina, and any further elaboration of criteria for future elections is a matter not decided by the Constitutional Court.

This type of pressure, along with existing pressures – the non-election of missing judges and financial pressures – aims to undermine the integrity and authority of the Constitutional Court of BiH. Therefore, we call on the public, politicians, analysts, and all others who contribute to such attacks on the Constitutional Court with inappropriate statements to refrain and, at least in that way, contribute to the court's efforts to preserve the efficiency and integrity of this institution, even in the difficult circumstances in which it is forced to operate.”

Several questions arise from this part of the Constitutional Court of BiH's statement. The first question is whether the judges of the Constitutional Court of BiH independently analyzed the election of their colleague? If so, on what grounds and at whose request, and if not, how do they know that Vukoja was elected in accordance with the Constitution? The second question is how can the supreme constitutional authorities claim that Vukoja was elected, when the entire public saw that he was the only candidate unconstitutionally and was de facto appointed. If the judges of the Constitutional Court of BiH consider it pressure when the public, experts, and analysts demand that judges be elected according to the rules, then what constitutional order do those judges protect?

If they talk about the authority of the Constitutional Court and judges, then Palavrić and her colleagues should refrain from commenting on the election of a constitutional judge who is the subject of proceedings in another Constitutional Court?

It is difficult to speak of the integrity of the Constitutional Court of BiH if its judges exert pressure on other institutions and presume the correctness of an election that the Constitutional Court of BiH is deciding on. It is even more difficult when they say that Vukoja was elected, and that for future judges, the Venice Commission's advice is needed. Based on the principle, it doesn't matter that Vukoja was elected unconstitutionally, let the next one be constitutional…

BiH is facing political tensions and divisions that are also reflected in the judicial system. In this context, any statement from high judicial bodies can have a significant political impact. The statement of the Constitutional Court of BiH can be understood as politically motivated, especially if viewed through the prism of current political interests and pressures.

I only hope that the judges of the Constitutional Court of the Federation will have more integrity than their colleagues in the Constitutional Court of BiH, will look more at the Constitution and rules, and less at the interests of various groups.

Because, only by respecting the rules and procedures, while considering the opinion of the Venice Commission, can we ensure that one day, when we reach the first chapter on the European path, which is called “rule of law,” we will not be doomed to failure in advance.

If the practice continues where constitutional courts approve political violence against rules and procedures, it is clear that this is a path to general anarchy.