Politeia (Jan 2012)
How non-legal becomes legal
Abstract
There are a lot of things in constitutional legal order in Bosnia and Herzegovina that attracts our attention. It has already been pointed out by many authors and many times that both letter of B&H Constitution and its implementation (what in American constitutional and legal literature is called constitution in action) have a numerous strangeness. In the countries that have constitution in formal sense it can be understood and tolerated in some extent the need of political actors to have a letter of domestic constitution interpreted in a way that correspond to their political interests in their everyday mutual political campaign. Such understanding and toleration are acceptable since, in final, their opinion is not legally binding. But, when the court does so, the court which have a highest place in judiciary, such appearance is a true dangerous and every well meaning man should be worried for that. Exactly such question is a topic of this paper. It is so due to the fact that a way on which Constitutional Court of B&H decided in a case from 2000 (on constitutionality of the peoples in B&H) unmasked readiness of some judges of that Court to put their functions in service of a realization of certain political interests. There is no ground neither in the letter nor in the spirit of B&H Constitution for the decision they took in that case, and today it (this case) is few bespoken here in B&H. Decision of European Court on Human Rights in case Sejdic-Finci (from 2009) is also subject of this paper. By this decision the European Court illegally put itself into position of institution which wants to make a constitutional revision in an unconstitutional way, just as it was done before by the Constitutional Court of B&H in the aforesaid case from 2000.
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