Vital Interest

In addition to the Entity voting requirement, there is the additional possibility for any of the three ethnic caucuses in the House of Peoples to block the adoption of a decision by use of the “vital interest” provision.²⁷⁴⁷ Any of the ethnic caucuses within the House of Peoples can declare any proposed decision of the Parliamentary Assembly to be destructive of a vital interest of its people. The BiH Constitution does not define the term “vital interest.” Nevertheless, once a threat to a vital interest has been identified and declared by a majority of members of one of the caucuses, the decision must then be adopted by a majority vote of the delegates present and voting within each caucus. A simple majority is no longer sufficient.

Once the vital interest has been declared, another ethic caucus, by majority vote, can object to the declaration of a vital interest in which case the voting process is halted and a commission comprised of a Croat, Bosniak, and Serb delegate is appointed to attempt to resolve the dispute. If the commission fails to resolve the dispute within five days, the matter is referred to the BiH Constitutional Court to review “for procedural regularity.”²⁷⁴⁸

The BiH Constitutional Court has repeated the importance of the mechanism for protecting the vital national interest in a State with multi-ethnic, multilingual and multi-religious communities. However, it has also emphasised the adverse effect that this procedure may have on the work of the legislative body and the functioning of the State.²⁷⁴⁹

The BiH Constitution states that the Court shall review the declared threat to a vital interest for “procedural regularity.” There have been several declarations of threats to vital interest in the House of Peoples and referrals to the BiH Constitutional Court for review of “procedural regularity.” As a result, there are several Constitutional Court decisions that interpret and clarify the procedures related to the vital interest. The Court has developed a regular practice of first reviewing the sequence of procedural events, which brought the matter to the attention of the BiH Constitutional Court. Was there a proper declaration by one of the caucuses, was it opposed by a majority of delegates from another caucus, was a commission appointed, and was the commission unable to resolve the dispute within five days?

A review of the “procedural regularity” might arguably conclude with a review of the House of People’s compliance with the required procedural steps – the declaration, the opposition to the declaration and the appointment of the commission.

But the review of procedural regularity operated by the BiH Constitutional Court goes beyond a mere review of the procedures. Instead, the Court has used the procedural review as the threshold test for admissibility.²⁷⁵⁰ The Court has found, on at least one occasion (U 9/08), that the declaration of vital interest did not relate to a “decision” within the meaning of Article IV.3(e) of the BiH Constitution. As a result, the declaration of the Bosniak caucus declaring a draft conclusion to be destructive of a vital interest of the Bosniak people was found to not to meet the procedural regularity requirement.

After the Court concludes that the required procedures for declaring a threat to a vital interest have been followed, it proceeds to an analysis of the merits of the vital interest claim itself. Here, the Court engages in a two-part analysis. First, it determines the existence of a vital interest of one or more of the constituent peoples, which might be threatened by the decision. If a vital interest exists, the Court then proceeds to a determination of whether the decision will be destructive of that vital interest.²⁷⁵¹ In at least one case, the BiH Constitutional Court has found the existence of a vital interest, but held that a decision on the matter would not be “destructive” of the interest.²⁷⁵² In another case, the Court found no issue of vital interest was raised by the contested decision.²⁷⁵³

The term “vital interest” is not defined in the BiH Constitution. It has been left for the Court to interpret on a case-by-case basis. The Venice Commission has pointed out that it “seems inappropriate to leave such a task with major political implications to the Court alone without providing it with guidance in the text of the BiH Constitution.”²⁷⁵⁴ Without such constitutional guidance, the Court has applied a functional analysis to each case.²⁷⁵⁵ In this functional analysis, the Court is “guided by the values and principles essential for a free democratic society” while at the same time ensuring that “protection of the vital interest must not jeopardise implementation of the theory of state functionality.”²⁷⁵⁶

The Court has stated that it would not attempt to enumerate or define exhaustively the elements of a vital interest.²⁷⁵⁷ However, in recent cases, the Court seems to have relied on definitions contained in the Entity constitutions, namely equal rights of the constituent peoples in the decision-making process, education, religion, language, culture, tradition, and cultural heritage.²⁷⁵⁸ The term “vital interest” in the BiH Constitution of Bosnia and Herzegovina can therefore be interpreted to include, at a minimum, the definition of vital interests contained in the Entity constitutions. The Venice Commission views this definition to be “excessively broad.”²⁷⁵⁹

The Court has emphasised the fact that the interest of constituent peoples in fully participating in the system of government and the operation of public authorities can be seen as a vital interest, recalling that the BiH Constitution itself reflects this by requiring in Article IX.3 that officials appointed to positions in the institutions of Bosnia and Herzegovina to be generally representative of the peoples of Bosnia and Herzegovina.²⁷⁶⁰