Failure to fill Constitutional Court is a criminal offense: In FBiH, cancel the competition and issue a public call, in RS, prosecute the obstructors

By: Rasim Belko

Miodrag Simović retired last year in November. The National Assembly of RS was supposed to, but has not yet completed the election of his successor. It dragged on in the previous term, and in this one, practically nothing is being done. After Milorad Dodik and the NSRs decided to nullify the work of the Constitutional Court of Bosnia and Herzegovina in 49 percent of the occupied territory, it is certain that there will be no new judge for a long time.

Thus, it is clear that when Zlatko M. Knežević, most likely at the end of the year, retires early, the Constitutional Court of BiH will be left without judges from the entity of RS.

In translation, this is a double undermining and collapse of the constitutional order of Bosnia and Herzegovina, because the Constitutional Court, with its impeded functioning and reduced capacity, will be a disharmonized institution. And this is a key institution for the constitutionality of the order and the functioning of Bosnia and Herzegovina as a sovereign state.

And while prosecutors from the Prosecutor's Office of Bosnia and Herzegovina are trying to build an indictment against Dodik that will not include anything significant and nothing other than what would interest Dodik, one of the most serious criminal offenses is taking place next to them - undermining the constitutional order of Bosnia and Herzegovina.

Because Article 156 of the Criminal Code of Bosnia and Herzegovina, amended by High Representative Christian Schmidt, states: "Whoever attempts to change the constitutional order of Bosnia and Herzegovina or to overthrow its highest institutions by the use of force or threat of force, or in any other unlawful manner, shall be punished with imprisonment of at least five years".

This article of the Criminal Code of BiH clearly and precisely defines exactly what Milorad Dodik is doing, in an attempt to overthrow the Constitutional Court of Bosnia and Herzegovina, as a barrier that protects the constitutional order and is the last obstacle to his secessionist aspirations and plans. When he overthrows the Constitutional Court of Bosnia and Herzegovina, Milorad Dodik has cleared the space for action to achieve his final goal. And that is why his actions must be prosecuted as provided for by the Criminal Code of BiH, which the State Prosecutor's Office is supposed to work on, but thanks to Chief Prosecutor Milanko Kajganić, it is clearly not working.

A similar situation, only with a different signature and motive, exists in the entity of the Federation. Mato Tadić is no longer in the Constitutional Court of BiH. His successor is to be elected by the Parliament of the Federation, but this process has become a vicious cycle, given that the HDZ, through a political agreement with the Trojka, wants to install the incompetent but politically suitable Marin Vukoja.

The professional opinion is clear - Vukoja lacks the competence to be a constitutional judge. The HDZ's stance is stubborn; they are ready to block all processes to install Vukoja, and the Trojka, following standard procedure, does not look at competencies but fulfills wishes. However, the process has stalled, and its unblocking will certainly lead the Federation into a new crisis. Moreover, it will involve all those involved in the appointment of Vukoja in the criminal offense of undermining the constitutional order. The mere fact that Vukoja received the highest political points in a rigged interview, far more than experienced and competent candidates from the judiciary, can be interpreted as undermining the constitutional order. What does not need to be interpreted is the fact that there is no judge, and this is a direct violation of Article 156 of the Criminal Code of BiH.

Seada Palavrić will also retire next year, so if this pace continues, it is likely that only three judges appointed by the European Court in Strasbourg will sit in the Constitutional Court of BiH.

It is clear that the election of judges from RS can only be resolved by pressure on Dodik or by an indictment based on the Criminal Code.

On the other hand, if there is a will, the Parliament of the Federation of BiH can resolve the situation regarding Vukoja much more simply, but also set clear standards for future elections of Constitutional Court judges.

This can be done by canceling the competition, which has been dragging on for too long, and issuing a public call for the election of a Constitutional Court judge. This Public Call must define clear conditions, primarily the competence of the future constitutional judge, meaning they must have at least five, eight, or ten years of experience in the judiciary. These criteria should be determined by constitutional law experts, not by electing judges to the most important instance for the defense of the state based on the scoring of party pawns at the expense of the state, as is the case in the current competition.

This public call, through its criteria and conditions, would largely define both those who apply and those who will be elected, as it would only offer candidates with serious judicial experience, so it would not be possible for someone who was a parliamentary secretary to have more points than candidates with serious biographies.

If the Parliament of the Federation, which is clearly controlled by the HDZ and Dragan Čović, decides to continue with games without limits, then it is clear that they too must be held accountable under Article 156 of the Criminal Code of Bosnia and Herzegovina.

And only when those who undermine the constitutional order, whether they act by force or unlawfully, are prosecuted for anti-state activities, can we count on becoming a serious country one day.