E. Powers (Article IV.4)

4. Powers

The Parliamentary Assembly shall have responsibility for:

a. Enacting legislation as necessary to implement decisions of the Presidency or to carry out the responsibilities of the Assembly under this Constitution.

b. Deciding upon the sources and amounts of revenues for the operations of the institutions of Bosnia and Herzegovina and international obligations of Bosnia and Herzegovina.

c. Approving a budget for the institutions of Bosnia and Herzegovina.

d. Deciding whether to consent to the ratification of treaties.

e. Such other matters as are necessary to carry out its duties or as are assigned to it by mutual agreement of the Entities.

The powers of the Parliamentary Assembly are set forth in paragraph 4 of Article IV. A series of Constitutional Court decisions have helped to flesh out the full scope of the powers of the Parliamentary Assembly.

a) Enacting legislation necessary to implement decisions of the Presidency or to carry out the responsibilities of the Assembly under this Constitution.

Two decisions of the BiH Constitutional Court have affirmed the broad powers of the Parliamentary Assembly to enact legislation necessary to implement the enumerated powers granted to State institutions in Article III.1 of the BiH Constitution.

In the State Border Service case,²⁷⁷¹ the BiH Constitutional Court was asked to review the enactment of legislation creating a State Border Service. The legislation was initially proposed by the Presidency of Bosnia and Herzegovina.²⁷⁷² The proposal was rejected by the Parliamentary Assembly, but imposed by the High Representative acting in substitution for the Parliamentary Assembly.²⁷⁷³ The Court’s analysis was, therefore, an analysis of the BiH constitutional authority of the Presidency and of the Parliamentary Assembly to enact such legislation.²⁷⁷⁴

The BiH Constitutional Court held that the Parliamentary Assembly had express authority to enact legislation necessary to implement decisions of the Presidency.²⁷⁷⁵ In order to uphold the law, however, it was necessary for the Court to analyse whether the Presidency had the BiH constitutional authority to issue a decision on enactment of a State Border Service.²⁷⁷⁶ The Court upheld that authority under Articles III.1 and III.5(a).²⁷⁷⁷ The Court ruled that the State, acting through a decision of the Presidency, has broad constitutional authority for the “external activities of Bosnia and Herzegovina.”²⁷⁷⁸ Those powers, supplemented by the authority of the State to assume responsibilities and establish institutions necessary to protect the sovereignty, territorial integrity, political independence, and international personality of Bosnia and Herzegovina, provided the BiH Constitutional foundation for adoption of the Law on State Border Service. The independent constitutional authority for the Presidency and Parliamentary Assembly to act in this field meant that Entity consent was not required for enactment of the legislation.²⁷⁷⁹

The ruling in the State Border Service case was affirmed and further expanded in the decision regarding the constitutionality of the Law on Statistics.²⁷⁸⁰ The Law on Statistics was also imposed by the High Representative, but was later adopted by the Parliamentary Assembly.²⁷⁸¹ The challenge to the law asserted that the field of statistics is not a State competency and that the Parliamentary Assembly therefore had no independent basis for adopting legislation in this field under the authority of Article IV.4(a). The Court disagreed.

The BiH Constitutional Court analysed the commitments that Bosnia and Herzegovina had made to the Council of Europe and to the European Union through the Stabilisation and Association Agreement.²⁷⁸² It held that these international commitments properly fell within the competencies of the State, and specifically the powers of the Presidency to conduct foreign policy. Based on this analysis:

“The BiH Constitutional Court holds, with no doubt, that the Parliamentary Assembly of Bosnia and Herzegovina has the mandate to enact the challenged law based on Article IV.4(a) in conjunction with Article V.3(a) of the BiH Constitution of BiH in order to enforce decisions in the area of foreign policy, which falls under the exclusive competence of the Presidency of Bosnia and Herzegovina, relating to the process of becoming a member of the Council of Europe and towards the signing of the Stabilization and Association Agreement with the European Union. The BiH Constitutional Court underlines that the Parliamentary Assembly, as an institution of BiH, has responsibilities under Article IV.4(a) for all matters set out in Article III.1 of the BiH Constitution of BiH.”²⁷⁸³

The ruling in the Law on Statistics case broadened, in two significant ways, the scope of power of the Parliamentary Assembly to legislate under Article IV.4(a). First, the decision recognised the authority of the Parliamentary Assembly to enact legislation for the purpose of implementing broad foreign policy objectives established through decisions of the Presidency.²⁷⁸⁴ The Law on Statistics was not enacted pursuant to a specific proposal of the Presidency as was the case with the Law on State Border Service. The basis for constitutional authority for the Law on Statistics was found in the broader international commitments that the Presidency had made through the Council of Europe and European Union accession processes.

Second, while the power of the Parliamentary Assembly was rooted in the Presidency’s constitutional authority to conduct foreign policy, the broad language of the ruling would support the Parliamentary Assembly’s power to legislate in an area that “significantly facilitates [the] functioning of all of these areas under the competence of the institutions of BiH, including foreign trade policy, customs policy, immigration, refugee and asylum policy and regulation, communication facilities and regulation of inter-Entity transportation, etc. (emphasis added).”²⁷⁸⁵ In the case of the Law on Statistics, there was no doubt that the Entities possessed competencies in the field of statistics. However, the Court held that the legislation was necessary to implement foreign policy commitments and also that the legislation “significantly facilitated” the implementation of core State competencies. On both grounds, the Parliamentary Assembly had the constitutional authority to pre-empt Entity legislation. The State Border Service case and the Law on Statistics case provide a constitutional basis for the expansion of State authority into additional subject areas, which might otherwise be thought to fall within Entity competencies, in order for Bosnia and Herzegovina to meet its various international commitments to the European Union, the Council of Europe, NATO, OSCE and others.

b) Deciding upon the sources and amounts of revenues for the operations of the institutions of the institutions of Bosnia and Herzegovina and the international obligations of Bosnia and Herzegovina;

c) Approving a budget for the institutions of Bosnia and Herzegovina.

The BiH Constitutional Court examined the provisions of subparagraphs (b) and (c) of Article IV.4 in the context of a constitutional challenge to the Law on Salaries and Other Compensations in Judicial and Prosecutorial Institutions at the Level of Bosnia and Herzegovina.²⁷⁸⁶ That case recognised that the Parliamentary Assembly is the legislative body of BiH and, based on the powers granted in Article IV.4 of the BiH Constitution, it determines the legislative framework for the activities of other State bodies. The Parliamentary Assembly has the power to determine the budget for all state bodies.²⁷⁸⁷ However, in this case, the Court held that the power to make revenue and budget decisions for State institutions did not include the power to establish the salaries of the judges of the BiH Constitutional Court because such power within the hands of parliament might jeopardize the independence of the judiciary.

d) Deciding whether to consent to the ratification of treaties.

The power of the Parliamentary Assembly to consent to the ratification of treaties has been affirmed by the BiH Constitutional Court and has not been seriously questioned.²⁷⁸⁸ There was, however, some dispute between the Presidency and members of parliament as to whether parliamentary approval was necessary for the deployment of Armed Forces of BiH (AFBiH) troops as part of a peacekeeping operation. The issue arose in 2004 in connection with the deployment of Bosnian troops to Iraq. The Presidency of Bosnia and Herzegovina had entered into an agreement with the United States regarding the deployment of AFBiH troops to join the multi-national force in Iraq. Members of parliament asserted the constitutional right to ratify that agreement. The dispute was resolved when the Parliamentary Assembly adopted the Law on Participation in Peace Support Operations,²⁷⁸⁹ which now explicitly requires the approval of parliament for any deployment of troops abroad.

e) Such other matters as are necessary to carry out its duties or as are assigned to it by mutual agreement of the Entities.

The BiH Constitutional Court has recognised that Article IV.4(e) may encompass a broader range of competencies than those specifically enumerated in Article III.1.²⁷⁹⁰ The provisions of Article IV.4(e), together with the specific authority to regulate the issuance of passports found in Article I.7(e), provided the constitutional basis for the Court to uphold amendments to the Law on Travel Documents, which asserted more State control over the design and issuance of passports by the Entities.

* The views of the author are his personal views and do not reflect the views of the Office of the High Representative or the European Union Special Representative.