Entity Voting Requirement

The Entity voting requirement of paragraph 3(d) establishes a three-step procedure. In the first vote on any decision, each chamber must use its best efforts to see that a simple majority in favour “includes at least one-third of the votes of delegates or members from the territory of each Entity.”²⁷⁴² This language has been the subject of controversy since 1996. Some have interpreted the language of Article IV.3(d) as requiring the support of one- third of all members elected from both Entities. Others interpret it to require the support of at least one-third of those members from each Entity who are present and voting on a particular issue.

The plain language of the BiH Constitution (“one-third of the votes of delegates or members”) indicates that the Entity voting requirement is based on the support of those delegates or members who are actually present and voting. However, the requirement has been interpreted by both Chambers of the Parliamentary Assembly as requiring the support of one-third of all delegates or members elected from each Entity. A proper interpretation of the Entity voting requirement has a significant impact on the functioning of the Parliamentary Assembly and its ability to adopt legislation. An Entity voting requirement that demands the support of one-third of all members or delegates elected from an Entity makes it much more difficult to adopt legislation because it enables the delegates or members elected from one Entity to block the legislation in the first step of the process by failing to attend a session.

If the Entity voting requirement is not met in the first vote, then the second step of the process is for the chair and deputy chairs of the chamber to meet as a commission and attempt to obtain approval within three days of the first vote. If the efforts of the commission fail within that timeframe, then the third step is for another vote on the legislation. At this stage, the legislation is approved by a majority of those present and voting, “provided that the dissenting votes do not include two-thirds or more of the delegates or members elected from either Entity.”²⁷⁴³ In this second round of voting, the procedure is clear. Only the act of casting a dissenting vote can prevent the adoption of legislation. The Entity veto can only be exercised by two-thirds of all members or delegates elected from one of the Entities, rather than a percentage of those present and voting, as is the case in the first round.

Under the language of the BiH Constitution, the Entity voting requirement should change on the vote following a failure of the commission to obtain the one-third approval from each entity. On the second vote, the focus changes from the percentage of Entity approval to the percentage of Entity dissent. The change in focus from counting active support for a decision to counting active opposition means that, while the lack of support for a measure within one Entity may prevent the adoption of the measure on in the first vote, the same lack of support may not necessarily prevent its ultimate adoption if opponents fail to muster two-thirds of the Entity votes in opposition.

It is worth recognising that the Entity voting provision, while intended to protect the interests of the Entities within the Parliamentary Assembly, has largely become a tool for protecting Serb interests, which are often equated with the interests of the Republika Srpska,.²⁷⁴⁴ In its current composition, the RS delegation to the House of Representatives consists of 12 Serbs and 2 Bosniaks and research on this matter illustrates that Entity voting has always followed ethnicity.²⁷⁴⁵ Entity voting has essentially become another means for Serb members from the Republika Srpska to assert their “vital interests,” but without the corresponding means to challenge that assertion found in subparagraphs (e) and (f) and discussed below.

The Entity voting requirement applies to both houses of the Parliamentary Assembly, but it is most frequently used in the House of Representatives.²⁷⁴⁶ The small size, equal ethnic representation, quorum requirement and vital interest provisions that apply in the House of Peoples have, to date, made the Entity voting requirement less of a factor in the House of Peoples.