The Constitutional Court Must be Reformed to Restore Rule of Law
The BiH Constitutional Court’s recent decision that the RS cannot celebrate the date of its founding highlights the serious need for reform of the Constitutional Court to restore the rule of law and confidence among BiH’s constituent peoples. Once again, the court’s three foreign judges aligned with the two Bosniak judges to outvote the majority of BiH judges (two Serb and two Croat judges) on political rather than legal grounds to support a case, not brought by allegedly injured citizens, but by one of the most divisive and powerful Bosniak politicians. Unfortunately, this is not an isolated incident but follows a long pattern of the court acting as a political instrument of the Bosniak parties and the High Representative. It is time for participation of foreign judges on the court to end, as should have happened 15 years ago according to the terms of the BiH Constitution.
An Indefensible Decision
The court’s three foreign judges and two Bosniak judges held that commemorating January 9, the date of the RS’s founding, as a public holiday discriminates against members of non-Serb ethnicities. The Constitutional Court’s Republic Day decision has no legally defensible basis. The Court has not published its decision but has only issued an order forbidding RS celebration of its founding date as a public holiday. Although the court has not fully explained its reasoning, press reports indicate that its allegation of discrimination rests on the fact that January 9, in addition to being the date of the RS’s founding, is also the feast day of St. Stephen on the Serbian Orthodox calendar. Such a rationale would ignore relevant law and the practice of virtually all European states.
First, Republic Day is not a religious holiday. It celebrates the date on which the RS was founded, not St. Stephen. The fact that the RS happened to be founded on January 9, the feast day of St. Stephen, is coincidental and of no significance. Every day of the year is the feast day of at least one saint. The feast day of St. Stephen is just one of hundreds of feast days, and it is not a public holiday in Serbia.
Moreover, even if Republic Day really were a religious holiday, that would hardly render it unlawful discrimination. If Christian holidays were to be considered discriminatory, most public holidays in Europe would be wiped off the calendar. Christmas, for example, is a public holiday in every European state. St. Stephen’s Day itself is observed as a public holiday in at least 22 European countries, under the name of St. Stephen’s Day, Boxing Day, or Second Christmas Day.
High Representative Inzko’s native Austria observes no fewer than ten Christian feast days as public holidays, including St. Stephen’s day.
The three foreign Constitutional Court judges who voted to bar Republic Day all come from European countries in which multiple Christian feasts are observed as public holidays. For example, Judge Constance Grewe’s native German state of Baden-Baden-Württemberg celebrates nine Christian feasts as public holidays, including St. Stephen’s Day. Germany, like most other European countries, has no public holidays for important feasts of Islam or other non-Christian religions.
The notion that religious holidays are discriminatory finds no support in European law. As a 2013 study by the European Parliament observes, “Several constitutional courts, in dealing with the supposedly discriminatory character of rules establishing Sunday and the most important festivities of the Christian religion as public holidays, have dismissed these cases, holding that a legislative choice as such is not unreasonable, having regard to the religious and historical traditions of each society, and to the fact that these festivities have acquired, over time, a secular meaning.”
The Constitutional Court’s Long Pattern of Politics
The Republic Day decision is only the latest manifestation of the Constitutional Court’s willingness to routinely rubber stamp the agenda of Bosniak parties and the OHR while setting aside the BiH Constitution and relevant European precedent. After serving as a foreign judge on the BiH Constitutional Court, Austrian professor Joseph Marko admitted that there was a “tacit consensus between the Court and the High Representative that the Court . . . will always confirm the merits of his legislation . . . .” Indeed, the High Representative’s interference with the Court was made clear by its order issued in March 2007 demanding that the court never challenge its decisions. And as recently as October 2015, the High Representative went so far as to declare itself, and not the court, as the final interpreter of the Constitution.
The Republic Day decision is also just the latest example of a frequent pattern in which the court’s three foreign judges align themselves with the two Bosniak judges to outvote the Serb and Croat judges. Because of this, many of the court’s most important decisions have been opposed by four of the BiH citizens on the court and supported by just two. For example, the High Representative’s decreed law creating the Court of BiH, despite being in conflict with the BiH Constitution, was upheld by the votes of three foreign judges and two Bosniak judges, outvoting the four Serb and Croat judges. The High Representative this week publicly defended the role of the Constitutional Court’s foreign judges, and this is not surprising given their subservience to his office.
An Opportunity for Reform
It is a highly extraordinary measure for non-citizens of a country to serve as judges on a sovereign state’s highest court. It is even more extraordinary that they are appointed by a foreign court without any requirement of consent by officials of the sovereign state. The BiH Constitution recognizes this, and thus provides for three foreign judges only as a transitional measure. The Constitution authorizes the Parliamentary Assembly to pass a new law replacing the foreign judges five years after their initial appointment.
Continuation of foreign judges 20 years after the Dayton Accords is incompatible with BiH sovereignty, guaranteed by Dayton. No other sovereign state in the world has seats on its constitutional court reserved for foreign judges. Domestic and international support for this eccentric practice, to the extent it exists, is not compatible with respect for rule of law and democratic governance. Rather it is a poorly disguised continuation of foreign intervention into the domestic affairs of BiH in support of Bosniak parties’ policies that discriminate against Serb and Croat communities in ways prohibited by the Dayton Accords and the BiH Constitution.