Division of power

Another element of the formal principle of a legal state is the division of power. Although it is not explicitly mentioned in the BiH Constitution, the Constitutional Court and the Human Rights Commission within the Constitutional Court of BiH have emphasised several times that the division of power is an inherent element of the principle of a legal state.³⁰⁷ The principle of division of power stipulates that “the state regulatory power is divided into functional fields, which are, in legal terms, assigned to special and mutually divided branches of state government.”³⁰⁸ In this regard, the Constitutional Court differentiates among four branches of state power: “legislative, executive, administrative and judicial power”,³⁰⁹ in which case the executive power is represented by the Presidency and Government (Council of Ministers) – according to Article V of the BiH Constitution. “It is a legitimate right of each state to organise its system in a way it deems to be the most functional and which serves to the best of its interest.”³¹⁰ The BIH Constitution, in this regard, provides for horizontal division of power among the legislature, Presidency, Council of Ministers, administration and judiciary. The aforementioned is to be differentiated from the division of competencies between the State of BiH and Entities, which is carried out according to the federal, i.e., con-federal principles and not according to the functional fields of state power.³¹¹

The line of division between different fields of state power is not always so strict. Therefore, together with the Human Rights Commission within the Constitutional Court of BiH,³¹² we may conclude, as follows: the laws and other legal norms are passed by the legislature. Those norms do not regulate only the primary legal relations (substantive law) but also the secondary legal relations (procedural law). The said norms are applied by the institutions of executive power, i.e., the administration. The exercise of executive power and the administration of those norms is under the control (review) of the judiciary. There is a difference between the executive power and administration on the one hand, and the judiciary on the other hand. This difference is reflected in the fact that the executive power looks to the future and, based on its legal authorities, gives shapes and fundaments to legal and factual relations in the public interest; and the judiciary is in charge of subsequent control (review) of the lawfulness of the administration’s acts. Such a division of tasks does not eliminate the possibility for granting some “manoeuvring space” to the administration in which it may take proper decisions in some cases. Those decisions may be checked by the judiciary only to some extent, i.e., inasmuch as it is necessary to establish whether the administration has used “the permitted manoeuvring space” in a wrong manner; however, in such situations the judiciary shall not make decisions in the stead of the administration.

State authorities, each in their field, do not act independently of each other, but rather “in relation to the previously defined co-action, and thus they act in a relationship of mutual dependence and control (check and balance)”.³¹³ Accordingly, the task of the judiciary is to interpret and apply the laws. If a need be, the laws shall identify and fill in the existing legal gaps.³¹⁴ The Constitutional Court, by virtue of the BiH Constitution, has a special role in regards to the legislature: the Constitutional Court is obliged to declare unconstitutional laws invalid.³¹⁵ With the purpose of resolving an issue of inconsistency with the Constitution and provided that the legal situation requires that, the Constitutional Court may oblige the legislature to act.³¹⁶ And vice versa, pursuant to Article VI.3(a) of the BiH Constitution, the Entity parliaments are tasked with electing Judges to the Constitutional Court. Within the authorities given by law, the executive power issues legal regulations in the form of generally binding decrees. As to the essence of some legal field (which is related to human rights and freedoms) the decision shall be adopted by the legislature; that issue shall not be left to the executive power’s margin of appreciation (for instance, the issue of basic modalities relating to the settlement of “old foreign currency savings”). The reason for this is the fact that the administration lacks the “democratic substrate” possessed by the legislature based on its legitimacy gained in democratic elections, which gives the right to the legislature to take over responsibility for such decisions.³¹⁷ The fact that legal norms dealing with human rights and freedoms could be passed by the legislature exclusively is one of the expressions of the division of power and, at the same time, one of the principles of democracy. Finally, the courts also have wide authority in controlling the work of the administration, with the aim to ensure effective legal protection under Article 6 of the ECHR.³¹⁸

Both the legislative and executive powers must fully comply with the independence of the judiciary. Accordingly, it should not occur that legally binding decisions of courts are relativised by subsequently issued regulations. That may happen if, for instance, a judgment on awarding a certain amount of money and legally prescribed interest is subsequently ex lege “corrected” by an Entity legislature’s decision to annul the interest rate. As far as the Constitutional Court is concerned, that would mean an unacceptable interference by the legislature with the work of the judiciary.³¹⁹ Also, the Entity government cannot, by issuance of a decree, suspend the enforcement of legally binding decisions of the CRPC, as referred to in Annex 7 to the GFAP (CRPC), until the CRPC makes a decision on the party’s request for renewal of the proceedings. Such prevention of enforcement imposed by the executive power would mean that the government has usurped the legislative authority, which is inconsistent with the principle of separation of powers.³²⁰ A postponement of enforcement would not be considered illegal only if imposed by law and if the public interest is justly and lawfully determined, including the ownership rights of the individual.³²¹