When a Government Lacks Constitutional Title: U-29/25, Acting Authority, and Executive Legitimacy in Bosnia and Herzegovina

February 13, 2026

By Filip Novaković In: Constitutional and Human Rights Issues Region: Bosnia and Herzegovina

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Introduction

The appointment of the new Government of Republika Srpska in August 2025 unfolded under highly atypical and constitutionally contentious circumstances, ultimately giving rise to one of the most significant constitutional disputes in post-Dayton Bosnia and Herzegovina. On 18 August 2025, the Court of Bosnia and Herzegovina rendered a final judgment establishing that Milorad Dodik’s mandate as President of Republika Srpska had ceased as of 12 June 2025, the date on which the judgment became final and legally binding.¹ That judgment entailed, as a legal consequence, the termination of his eligibility to hold the office of President of Republika Srpska, a fact subsequently confirmed in declaratory proceedings before the Central Election Commission of Bosnia and Herzegovina.²

Despite the existence of a final and binding judicial determination terminating his mandate, Dodik continued to perform presidential functions.³ On 23 August 2025, acting in the purported capacity of President of Republika Srpska, he issued a formal decision proposing Savo Minić, then Minister of Agriculture, Forestry and Water Management, as candidate for President of the Government of Republika Srpska. Based on this proposal, the National Assembly of Republika Srpska adopted a set of decisions on 2 September 2025 concerning the election of the President of the Government, the election of members of the Government, and the early entry into force of those decisions.

These acts prompted a constitutional challenge by members of both chambers of the Parliamentary Assembly of Bosnia and Herzegovina, who submitted a request to the Constitutional Court of Bosnia and Herzegovina seeking a review of constitutionality and the resolution of a constitutional dispute between Bosnia and Herzegovina and the entity of Republika Srpska. In its decision in case U-29/25, the Constitutional Court confirmed its jurisdiction to review the disputed acts, holding that they raised issues of constitutional relevance under Article I/2 of the Constitution of Bosnia and Herzegovina, concerning the principle of the rule of law, as well as Article III/3(b), which obliges the entities to respect the decisions of the institutions of Bosnia and Herzegovina. On the merits, the Court concluded that the contested decisions were incompatible with those constitutional provisions during the period from their adoption on 2 September 2025 until they were repealed on 18 January 2026, as they were based on a proposal issued by an individual whose mandate as President of Republika Srpska had already ceased.

However, the constitutional crisis did not end with the acts examined in U-29/25. Prior to the adoption of the Constitutional Court’s decision, the President of the Government, Savo Minić, submitted his resignation and subsequently received a new mandate from a person exercising presidential functions in Republika Srpska. This development opened a second, analytically distinct phase of the crisis. Unlike the first phase, which concerned the exercise of presidential powers by an individual whose mandate had ceased, the second phase raises the question of whether presidential powers may be exercised at all by an authority not recognised by the Constitution of Republika Srpska. The Constitution of Republika Srpska does not provide for the institution of an acting president, nor does it allow the transfer of the President’s constitutionally enumerated competences – most notably the power to propose a candidate for President of the Government – outside the narrowly defined mechanism of substitution by one of the Vice-Presidents in cases of temporary incapacity.⁴

This article analyses the constitutional implications of both phases of the crisis. It examines, first, the legal consequences of governmental formation based on acts issued by a person who no longer held constitutional office, as authoritatively determined by the Constitutional Court of Bosnia and Herzegovina. It then turns to the subsequent attempt to renew governmental legitimacy through constitutionally unrecognised mechanisms at the entity level. Particular emphasis is placed on the distinction between de facto authority and constitutional legitimacy, the limits of remedial tolerance in the name of legal certainty, and the broader implications of U-29/25 for the supremacy of the Constitution of Bosnia and Herzegovina and the principle that public authority may be exercised only on the basis of valid constitutional title.

The Constitutional Framework and the Disputed Appointments

The Constitution of Bosnia and Herzegovina, contained in Annex 4 to the General Framework Agreement for Peace, establishes a complex, asymmetrical, and multi-layered system of governance in which the entities enjoy a high degree of autonomy while remaining unequivocally bound by the supremacy of state-level constitutional norms.⁵ Although the appointment and composition of entity governments are primarily regulated by entity constitutions and legislation, those processes are not insulated from state constitutional review where they raise issues concerning the legality of officeholders, respect for binding decisions of state institutions, or the foundational principles of the constitutional order.

In case U-29/25, the Constitutional Court of Bosnia and Herzegovina confirmed that the formation of the Government of Republika Srpska raised precisely such issues. The central constitutional defect identified by the Court lay in the fact that the proposal to appoint the President of the Government was issued by an individual whose mandate as President of Republika Srpska had already ceased as a legal consequence of a final judgment of the Court of Bosnia and Herzegovina. As the Constitutional Court expressly noted, the subsequent proceedings before the Central Election Commission were of a declaratory nature and could not retroactively confer constitutional authority on acts adopted in the absence of a valid mandate.⁶

On that basis, the Court concluded that the decisions concerning the election of the President of the Government of Republika Srpska, the election of members of the Government, and the early entry into force of those decisions were, during the period from 2 September 2025 to 18 January 2026, incompatible with Articles I/2 and III/3(b) of the Constitution of Bosnia and Herzegovina. The first of these provisions enshrines the principle of the rule of law as a foundational value of the constitutional order, while the second imposes a constitutional obligation on the entities to respect the decisions of the institutions of Bosnia and Herzegovina.

The Constitutional Court’s findings confirm that defects in the constitutional status of a mandate-granting authority are not confined to the individual act by which the mandate is issued, but may extend to the entire chain of subsequent governmental appointments. Where the initial act lacks constitutional validity, the legality of all derivative acts is necessarily called into question. At the same time, the Court’s approach illustrates the distinction between identifying a constitutional violation and determining the legal consequences of that violation within a functioning constitutional system.

The Constitutional Court’s Jurisdiction and Remedial Powers after U-29/25

Under Article VI(3)(a) of the Constitution of Bosnia and Herzegovina, the Constitutional Court has jurisdiction to resolve disputes arising under the Constitution between the State and an entity.⁷ In U-29/25, the Court clarified that this jurisdiction extends to acts of entity authorities which, although formally adopted within the entity’s constitutional framework, raise substantive questions concerning the rule of law and the obligation of entities to comply with binding decisions of state institutions.⁸ The Court further emphasised that, where such issues are raised, it alone is competent to determine their constitutional compatibility.

The decision in U-29/25 is also instructive with regard to the Court’s remedial philosophy. Rather than adopting a rigidly formalistic approach that would automatically render all acts adopted by an unconstitutionally constituted government void ab initio, the Court opted for a temporally delimited finding of unconstitutionality. By declaring that the contested acts were unconstitutional during a defined period, the Court sought to reconcile two competing constitutional imperatives: the restoration of constitutional legality and the preservation of legal certainty and institutional continuity.

This remedial approach is consistent with the Court’s earlier jurisprudence, in which it has demonstrated a willingness to modulate the effects of its decisions in order to prevent systemic instability. The recognition of legal certainty as a constitutional value does not negate the existence of a constitutional violation, but it shapes the manner in which that violation is remedied. In this sense, U-29/25 exemplifies a functional model of constitutional adjudication, in which the Court distinguishes between constitutional validity and the practical effects of unconstitutional governance.

Legal Consequences and the Limits of De Facto Authority

Following the decision in U-29/25, the central constitutional question is no longer whether the Government of Republika Srpska was formed on an unconstitutional basis during the relevant period, as this has been conclusively determined by the Constitutional Court. Rather, the focus shifts to the legal consequences of that determination and the limits of tolerance afforded by the doctrine of de facto authority.

In constitutional theory and comparative practice, the doctrine of de facto authority serves a limited and pragmatic function: it preserves the legal effects of acts adopted by authorities lacking constitutional legitimacy in order to protect third parties and ensure the continuity of public administration.⁹ However, this doctrine does not transform unconstitutional authority into constitutional authority, nor does it provide a basis for the indefinite perpetuation or renewal of unconstitutional governance structures.

The Constitutional Court’s decision implicitly reflects this distinction. While it refrained from retroactively invalidating all acts adopted by the Government during the period of unconstitutionality, it did not confer constitutional legitimacy on that Government. On the contrary, the finding of unconstitutionality imposes a positive obligation on political actors to restore constitutional legality through procedures that are themselves constitutionally valid.

Any attempt to renew or perpetuate the same governmental structure without addressing the original constitutional defect therefore falls outside the protective scope of de facto authority. Legal certainty may justify the preservation of past effects, but it cannot serve as a constitutional foundation for future acts. In this respect, U-29/25 delineates the outer boundary of remedial tolerance: beyond that boundary, continued governance without valid constitutional title becomes incompatible with the rule of law itself.

The Broader Constitutional Significance of U-29/25

The proceedings and decision in U-29/25 transcend the legality of a single governmental formation and engage fundamental questions concerning the nature of constitutional authority in Bosnia and Herzegovina. By anchoring its reasoning in Articles I/2 and III/3(b) of the Constitution, the Constitutional Court reaffirmed that the exercise of public power is inseparable from respect for judicial decisions and from the principle that authority derives from constitutional entitlement rather than political expediency.

The case exposes the fragility of constitutional governance in a system characterised by fragmented competences and persistent political resistance to state-level institutions. It demonstrates how constitutional violations may acquire a veneer of normalcy through institutional practice, and how the absence of timely compliance can transform an isolated illegality into a structural constitutional crisis.

At the same time, U-29/25 illustrates the limits of judicial intervention in a politically contested environment. While the Court possesses the authority to declare acts unconstitutional and to articulate binding constitutional standards, the realisation of those standards ultimately depends on the willingness of political actors to internalise constitutional constraints. The decision therefore stands as both a reaffirmation of constitutional supremacy and a reminder of the persistent tension between constitutional legality and political power in post-Dayton Bosnia and Herzegovina.

Stage II: The Fiction of an Acting President and the Renewal of an Unconstitutional Government

Following the initial unconstitutional formation of the Government of Republika Srpska, which the Constitutional Court of Bosnia and Herzegovina authoritatively assessed in case U-29/25, the constitutional crisis did not come to an end. Instead, it evolved into a second and analytically distinct phase. This phase was marked by the resignation of the President of the Government and the subsequent issuance of a new mandate by a person designated as acting President, on the basis of a decision of the National Assembly of Republika Srpska. This development raises a separate and autonomous constitutional question: whether the National Assembly may create an interim presidential authority not envisaged by the Constitution of Republika Srpska, and whether acts adopted by such an authority can generate constitutional effects.

Unlike constitutional systems that expressly regulate interim or acting presidential authority, the Constitution of Republika Srpska establishes a closed and exhaustive framework governing both the office of the President and the mechanisms of substitution in cases of incapacity. Article 80 of the Constitution enumerates the competences of the President of the Republic, including the exclusive authority to propose a candidate for President of the Government to the National Assembly.¹⁰ These competences are inseparably linked to the office of the President as a directly elected constitutional organ whose democratic legitimacy derives from popular election and the oath taken before the National Assembly. No other body or individual is constitutionally authorised to exercise these competences outside the framework expressly provided by the Constitution.

The Constitution further regulates substitution in narrowly defined terms. In the event of temporary incapacity, the President may designate one of the two Vice-Presidents to replace him.¹¹ This mechanism is personal, constitutionally predetermined, and functionally limited. It does not permit the creation of a new constitutional office, nor does it allow for the transfer of presidential powers to an ad hoc authority established through legislative or political discretion. Crucially, the Constitution does not recognise the institution of an acting president, nor does it provide any residual or implicit competence to the National Assembly to introduce such a figure.

The involvement of the National Assembly of Republika Srpska in designating an acting president does not alter this constitutional assessment. While the National Assembly is the highest legislative body of the entity, its powers are constitutionally enumerated and limited.¹² The Constitution of Republika Srpska does not confer upon the Assembly a general constituent authority to modify the institutional architecture of the executive branch, nor does it authorise the Assembly to supplement or correct constitutional lacunae through ordinary decisions. Where the Constitution exhaustively regulates a constitutional function – such as presidential authority and succession – any attempt by the legislature to introduce an additional institutional layer may raise questions of ultra vires exercise of power.¹³

From a normative perspective, the purported office of acting president is therefore constitutionally non-existent. This deficiency is not merely formal, but substantive. The absence of constitutional recognition cannot be cured through parliamentary designation, political necessity, or institutional practice. In constitutional theory, constitutive powers – such as the authority to grant a mandate for the formation of a government – are inherently dependent on the constitutional legitimacy of the office from which they emanate.¹⁴ Where the office itself lacks constitutional existence, its acts cannot produce valid constitutional effects, regardless of subsequent political endorsement or implementation.¹⁵

The attempt to restore or renew governmental legitimacy through the resignation of the President of the Government and the immediate issuance of a new mandate thus fails on two independent grounds. First, the renewal of a mandate cannot cure an original constitutional defect if the source of authority remains invalid. An unconstitutional chain of legitimacy cannot regenerate itself through repetition. Second, the new mandate was issued by an authority whose status has no constitutional foundation, rendering the act constitutionally void ab initio. Legal continuity and political expediency cannot substitute for constitutional entitlement.

This second phase of the crisis exposes a deeper structural problem: the replacement of constitutionally prescribed mechanisms with improvised political solutions. While constitutional systems may tolerate flexibility in exceptional circumstances, such flexibility must itself be constitutionally authorised. In the absence of explicit constitutional provisions allowing for an acting president or parliamentary substitution of presidential authority, the assumption of presidential powers through legislative designation amounts to constitutional usurpation rather than constitutional continuity.

Importantly, this analysis does not contradict the decision of the Constitutional Court of Bosnia and Herzegovina in case U-29/25. The Court assessed the constitutionality of specific acts adopted during a defined temporal period and correctly identified their incompatibility with Articles I/2 and III/3(b) of the Constitution of Bosnia and Herzegovina. However, the Court’s decision cannot be interpreted as implicitly validating subsequent attempts to reconstruct the same governmental structure through constitutionally unrecognised mechanisms.¹⁶

On the contrary, the Court’s emphasis on the rule of law and the binding force of judicial decisions reinforces the principle that public authority may be exercised only on the basis of valid constitutional title.

Viewed in this light, the parliamentary construction of an acting president and the renewal of the governmental mandate do not represent a restoration of constitutional order, but its further erosion. The episode illustrates how constitutional crises may evolve through successive layers of illegality, each justified by reference to the necessity of governance, yet cumulatively undermining the foundations of constitutional authority and the supremacy of the constitutional order.

Conclusion

The constitutional dispute examined in this article, culminating in the decision of the Constitutional Court of Bosnia and Herzegovina in case U-29/25, represents a defining moment in the post-Dayton constitutional practice of Bosnia and Herzegovina. By declaring that the formation of the Government of Republika Srpska was incompatible with Articles I/2 and III/3(b) of the Constitution of Bosnia and Herzegovina during the relevant period, the Constitutional Court authoritatively reaffirmed two foundational principles of the constitutional order: the rule of law and the binding force of decisions adopted by state-level institutions. In doing so, the Court confirmed that constitutional authority cannot be derived from political persistence or institutional inertia, but only from valid constitutional title.

At the same time, the events surrounding U-29/25 reveal that the constitutional crisis did not consist of a single unlawful act, but of a sequence of interconnected violations affecting the very chain of constitutional legitimacy. The first phase of the crisis concerned the exercise of presidential powers by an individual whose mandate had ceased as a legal consequence of a final judgment of the Court of Bosnia and Herzegovina. The second phase arose from an attempt to renew governmental legitimacy through the parliamentary construction of an „acting president“, an institutional figure unknown to the Constitution of Republika Srpska and incompatible with its exhaustively regulated system of presidential authority and substitution. Taken together, these developments demonstrate how constitutional illegality may evolve incrementally, with each subsequent step seeking to normalise or conceal the original defect rather than to remedy it.

The decision in U-29/25 illustrates the Constitutional Court’s characteristic remedial restraint. By temporally delimiting the effects of unconstitutionality and refraining from retroactive invalidation of all governmental acts, the Court sought to balance the restoration of constitutional legality with the requirements of legal certainty and institutional continuity. However, the doctrine of de facto authority, implicitly reflected in this approach, must be understood as a doctrine of necessity rather than legitimacy. It may preserve the effects of past acts in order to protect third parties and prevent systemic paralysis, but it cannot serve as a constitutional foundation for the renewal or perpetuation of governance structures that lack valid constitutional origin.

From this perspective, the broader significance of U-29/25 lies not only in the unconstitutionality it identified, but in the limits it implicitly draws. Legal certainty may justify tolerance toward the consequences of unconstitutional governance, but it cannot justify the creation of new constitutional facts through constitutionally unauthorised mechanisms. Where the Constitution exhaustively regulates the exercise of public authority, neither executive practice nor parliamentary decision-making may substitute for constitutional amendment or constitutionally prescribed succession. Any attempt to do so amounts to an ultra vires exercise of power and undermines the very premise of constitutional supremacy.

A further development reinforces the structural concerns identified in this analysis and illustrates the risk of progressive erosion of the rule of law. A new request for constitutional review of the (new) Government of Republika Srpska has recently been submitted, once again challenging the constitutional validity of the governmental mandate. Although the outcome of these proceedings remains pending, the constitutional parameters articulated in case U-29/25 suggest that a similar trajectory cannot be excluded where the underlying defect in constitutional title persists. Recurrent reliance on arrangements lacking clear constitutional foundation risks normalising exceptional governance and gradually transforming constitutional deviation into institutional practice. Such repetition does not merely reproduce an earlier dispute; it deepens the erosion of the rule of law by weakening the principle that executive authority must originate in valid constitutional entitlement rather than political necessity or institutional improvisation.

Ultimately, U-29/25 reaffirms a fundamental axiom of constitutional governance in Bosnia and Herzegovina: public authority is not a matter of political expediency, institutional improvisation, or retrospective validation, but of constitutional right. The case serves as a cautionary example of how fragile the rule of law becomes when constitutional constraints are treated as obstacles to be navigated rather than as binding norms to be observed. At the same time, it demonstrates the continued centrality of the Constitutional Court as the ultimate guardian of constitutional legality in a deeply fragmented constitutional system. Whether the principles articulated in U-29/25 will translate into sustained constitutional compliance ultimately depends not only on judicial reasoning, but on the willingness of political actors to accept that constitutional authority begins – and ends – with the Constitution itself.

See Court of Bosnia and Herzegovina, Decision on the Appeal on the Termination of Mandate of Milorad Dodik as President of Republika Srpska (18 August 2025) (S1 3 Iž 052766 25 Iž), avaliable at: https://sudbih.gov.ba/Court/Open/15127?n=Rje%C5%A1enje%20Suda%20-%20prestanak%20mandata%20Dodik%20(002).pdf.
See also Mahir Muharemović, Bosnia’s Dodik Case: A “Victory” for the Rule of Law (Law and Governance South East Europe, 8 October 2025) https://lgsee.blog/bosnias-dodik-case-a-victory-for-the-rule-of-law/ accessed 22 January 2026; Harun Išerić, When Court Decisions Simply Aren’t Enough: What Comes Next for Bosnia and Herzegovina’s Constitutional Crisis? (Law and Governance South East Europe, 14 December 2025) https://lgsee.blog/when-court-decisions-simply-arent-enough-what-comes-next-for-bosnia-and-herzegovinas-constitutional-crisis/ accessed 22 January 2026.
Constitution of Bosnia and Herzegovina, art. III/3(b); Constitution of Republika Srpska, arts. 80 and 91-93 (competences of the President of Republika Srpska and the procedure for appointing the Government).
See Constitution of Republika Srpska, art. 80(4) (on granting authority to one of the vice-presidents in case of absence).
See Constitution of Bosnia and Herzegovina, arts. I(1), III(3), IV(3).
See Constitutional Court of Bosnia and Herzegovina, Decision U-29/25, paras 16-19, indicating that the termination of mandate occurred ex lege on the date of finality of the criminal judgment, whereas the subsequent decision of the Central Election Commission had a declaratory effect and could not retroactively confer constitutional authority.
See Constitution of Bosnia and Herzegovina, art. VI(3)(a).
A distinction must be drawn, in this context, between acts that are merely ultra vires under entity law and acts that amount to a violation of the constitutional order of Bosnia and Herzegovina. While the former concern the internal allocation of competences within an entity and typically fall within the jurisdiction of the entity constitutional court, the latter arise where an entity authority acts in disregard of obligations flowing directly from the Constitution of Bosnia and Herzegovina. In case U-29/25, the Constitutional Court did not review the contested decisions solely as acts allegedly exceeding entity competences, but as acts adopted in defiance of a final and binding judgment of the Court of Bosnia and Herzegovina. Such conduct raises issues under Articles I/2 and III/3(b) of the Constitution of Bosnia and Herzegovina and therefore falls within the exclusive jurisdiction of the Constitutional Court of Bosnia and Herzegovina, irrespective of the entity character of the acts concerned.
The Constitutional Court has in its case-law distinguished between general legal acts (such as constitutional provisions or laws) and individual acts, and has indicated that, as a rule, declarations of unconstitutionality regarding general legal acts produce ex nunc effect (they cease to be in force as of the date of publication), rather than ex tunc retroactive nullity; see, in particular, Partial Decision U-5/98 (1 July 2000), which held that parts of the entity constitutions found incompatible with the State Constitution „cease to be in effect as of the date of publication in the Official Gazette“. For the Court’s remedial practice in cases concerning institutional irregularities (harmonisation orders, remedial periods, and measures to preserve continuity), see inter alia U-4/04 (31 March 2006) and U-23/14 (1 December 2016); cf. also literature on the de facto officer doctrine and the policy rationale of legal certainty: M. Connolly, ‘How the De Facto Officer Doctrine Applies to Vacancies Act Issues’, Stanford Law Review, Vol. 74, No. 3, 2022, pp. 687-735.
See Constitution of Republika Srpska, art. 80.
See Constitution of Republika Srpska, art. 80(4).
See Constitution of Republika Srpska, art. 70.
A partially comparable institutional episode followed the death of the then acting President of Republika Srpska, Milan Jelić, in 2007, when presidential functions were temporarily exercised by the President of the National Assembly of Republika Srpska. A similar temporary arrangement also occurred following the removal of Nikola Poplašen from the office of President of Republika Srpska by the High Representative in 1999. To the author’s knowledge, the constitutionality of these arrangements was not reviewed by either the Constitutional Court of Republika Srpska or the Constitutional Court of Bosnia and Herzegovina. This article does not undertake a separate constitutional assessment of those episodes, which arose in different legal and institutional contexts.
M. Elliott and P. M. Murray, ‘In Defence of Classical Administrative Law’, Cambridge Law Journal, 2025, pp. 1-2 (describing the classical account of administrative law in which unlawful acts are void ab initio).
See D. M. Lawrence, ‘The Law of De Facto Officers’, Local Government Law Bulletin, No. 124, October 2010. De facto officer doctrine, which distinguishes between the de facto officer (whose acts may be upheld for reasons of legal certainty) and mere „intruders“ or „usurpers“ whose acts “are not valid as against the public” because they lack a legal basis in constitutional or statutory authority.
Claims advanced by authorities of Republika Srpska, and professional public in this entity, that the Constitutional Court of Bosnia and Herzegovina lacks jurisdiction to review the constitutionality of the Government of Republika Srpska are based on a conflation between entity-level constitutional review and the resolution of constitutional disputes under the Constitution of Bosnia and Herzegovina. While the internal compatibility of entity acts with the Constitution of Republika Srpska falls within the jurisdiction of the Constitutional Court of Republika Srpska, Article VI(3)(a) of the Constitution of Bosnia and Herzegovina confers exclusive jurisdiction on the Constitutional Court of Bosnia and Herzegovina to decide disputes arising under the State Constitution between Bosnia and Herzegovina and an entity. Where acts of an entity authority raise issues concerning the rule of law under Article I/2 of the Constitution of Bosnia and Herzegovina, or the obligation of entities to respect binding decisions of state institutions under Article III/3(b), the matter necessarily falls within the jurisdiction of the Constitutional Court of Bosnia and Herzegovina, irrespective of the entity character of the contested acts. This distinction was expressly affirmed by the Constitutional Court in case U-29/25, where it held that the impugned decisions of the National Assembly of Republika Srpska raised questions of compliance with Articles I/2 and III/3(b) of the Constitution of Bosnia and Herzegovina and therefore fell within its exclusive competence.

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