Schach Matt to Dayton. An attempt to destabilize Bosnia. A political adventure with an unknown outcome. These thoughts sum up what the West and the RS opposition think of Dodik’s initiative to call a referendum on the powers of the High Representative and the BiH Court.
While the confrontation between Dodik (supported by Russia) and the international community has been well captured by the media, this has overshadowed the role of judicial organs. Yet, the entity and the federal constitutional court have a say on whether a referendum will take place or not. The constitutional courts come into play after the three constituent peoples have agreed that they disagree.
This has already happened. After Croats remained divided on the issue, the Bosniak Caucus of the RS Council of Peoples (the second legislative chamber in the RS) has vetoed the National Assembly decision to call a referendum. As a response, the majority of the RS Council challenged the Bosniak veto before the entity constitutional court. What is yet pending is the decision of the vital national interest panel within that court. The seven judges composing the panel must rule on the legality of the veto within the next thirty days (Article 70 of the RS Constitution).
Unfortunately, it is already known how the RS Constitutional Court will decide. The RS Constitution, as modified by the High Representative in 2002, reads that only two (out of seven) judges are needed to back the vital national interest veto (Article 70 – cited above). As the panel comprises at least two judges from each constituent people, the court would hardly ever block a veto. This was a thorn in the side of the majority within the RS Constitutional Court, which found a way around the RS Constitution. In its own rules of procedure, the RS Constitutional Court determined that a two-thirds majority of judges must back a veto for it to be valid. This led to the absurd situation that even when a majority of judges found the veto justified, the Court would declare the veto nonetheless unconstitutional. As a consequence, nearly all Bosniak vetoes were annulled by the RS Constitutional Court. More surprisingly, the Bosnian Constitutional Court agreed with the disenfranchisement of veto rights. This move had earned the Court strong criticism not only from Bosniak politicians, but also from constitutional lawyers. Both courts had reduced the vital national interest veto in the RS to a dead letter.
The ball now passes again to the Bosnian Constitutional Court. The RS Constitutional Court will most likely reject the Bosniak veto. Bosniak politicians will then challenge the ruling in front of Bosnia’s Constitutional Court.
The latter has at least three choices. First, it could uphold its previous case law saying that this is a matter that concerns the RS only (AP 2821 of 26 March 2010, para 26; and U-7/10 of 26 November 2010). The Bosniak veto would be quashed and the referendum would go ahead. Second, it could make the referendum veto a special case. It could rule that it normally would not challenge RS Constitutional Court decisions, but that the referendum undermines the fundamentals of the BiH constitutional structure. This would be vaguely along the lines of another decision, where the BiH Constitutional Court overruled the interpretation of the RS Constitutional Court on the RS law on state property. Third, it could overrule the RS Constitutional Court decision and its previous case law, which deprived vital national interest vetoes of its essence. Of course Bosniak applicants need to ask for it, something that they usually do (see U-7/10, para 3). The latter would be the most welcome option, as the current situation leads to a strong asymmetry in the protection of vital national interests between the entities. Such strong asymmetry is not an issue internal to the RS only, but undoubtedly touches the BiH constitutional architecture. The Court has before itself a range of options on how to address the case, going from formalist deference to functional interpretations of BiH constitutional law.
Most importantly, the Bosnian Constitutional Court should prove that it can de-escalate explosive political conflicts. An external intervention by the High Representative would certainly raise tensions in Bosnia. The function of the Court is to depoliticize highly divisive issues and provide an adequate forum for solving controversies. It is not certain that the Bosnian Constitutional Court will rule on the issue, as Dodik might still backtrack if he gets what he wants (as happened in 2011). Constitutional courts can burn their fingers when playing with hot political potatoes. In this case, the choice of the Court is not an easy, but a necessary one. If the RS follows the Court rather than defying it, the Court proves itself as an effective referee in solving Bosnia’s ethno-national conflicts without external intervention.