A. About Article IX

Article IX of the BiH Constitution regulates the issue of assuming and distributing public offices.

Pursuant to paragraph 1 of this Article, no person who is serving a sentence imposed by the International Criminal Tribunal for the Former Yugoslavia, and no person who is under indictment by the Tribunal and who has failed to comply with an order to appear before the Tribunal, may stand as a candidate or hold any appointive, elective, or other public office in the territory of Bosnia and Herzegovina. This provision should be viewed together with the provision of Article II.8 of the BiH Constitution which stipulates a general obligation of competent authorities to cooperate with the Tribunal. Finally, when it comes to the issue of Article IX.1 of the BiH Constitution, the point of the matter is the constitutional prohibition of performing the profession. Namely, the goal of this prohibition is to prevent persons indicted for the most serious criminal offenses or “uncooperative” indicted persons from performing some public functions in Bosnia and Herzegovina after Dayton. Furthermore, the activities of the Tribunal constitute a relevant filter for application of this provision. This instrument for overcoming the past through the exclusion of the discredited persons is applied in addition to an already pronounced or expected criminal sanction. Paragraph 1, unlike paragraph 2, is so widely formulated that it bans performance of any public function, not only on the State level but also on the entity, cantonal or municipal level. Moreover, a mere nomination of such a person as a candidate for public office is banned in order to avoid a situation where a person who is already appointed to or elected for some public office would have to be subsequently removed from that office, which would be against the democratically expressed wish of the people or electoral gremium. The “public office” must be extensively interpreted since it is more precisely defined by the attributes “appointive” and “electoral” (a position to which a person is appointed or for which he is elected), as well as by the general provision “other public office”. In any case, this term refers to public offices of legislative, executive and judicial authority. Performing a function in a public company or in a company with the State as a majority owner should also fall within the scope of this provision, at least when it comes to the leading positions. The goal and purpose of this provision is to prevent “the discredited” persons from exerting any influence on the future destiny of the country. Moreover, from the public viewpoint, in order for this provision to be applied, it is only sufficient to have an impression that those persons have some influence, which means that this does not necessarily mean that those persons must have such an influence. However, when it comes to the highest leading positions in State companies, there is always an objective possibility for those persons to exert influence on the future development of Bosnia and Herzegovina, including a subjective feeling of a community that such a possibility always exists.

Pursuant to paragraph 2 of this Article, compensation for persons holding office in the institutions of Bosnia and Herzegovina may not be diminished during an officeholder’s tenure. The aim of this provision is to avoid the danger of disloyal influence on the holders of public office in State institutions through direct or indirect pressure or financial blackmail. During their tenure the protected public office holders are entitled to the keep financial insurance they had at the time of assuming office. The BiH Constitutional Court has taken a position that the application of the prohibition against diminishing compensation is not subject to any kind of limitation (such as the economic power of the State). However, a question rises as to whether it would be permitted, with respect to budget-technical corrections, to reduce the compensation for public office holders (for instance, in percentage), which would apply to everyone. If one takes into consideration that the goal of this provision is to prescribe specific measures aimed at preventing the violation of the principle of division of power, then, for the purpose of budget consolidation, a general and equal reduction of compensation would be justified.

When it comes to the circle of persons protected under this provision, the notion of “public office” from paragraph 1 must be limited for at least two reasons. On the one hand, the provision is solely related to the holders of public office in the institutions of Bosnia and Herzegovina. Accordingly, this provision cannot protect the holders of public office at the Entity, cantonal or municipal level. On the other hand, this provision refers to the holders of public office having a mandate. Thus, the provision does not refer to ordinary civil servants. Moreover, this provision may protect only those public office holders assuming office either through appointment or election or in some other similar way for a limited period of time in a legislative, executive or judicial body of authority. This also applies to the judges of the BiH Constitutional Court.³⁸⁹⁹

Thus far,³⁹⁰⁰ the provision of Article IX.1 of the BiH Constitution has not been a subject of the judicial practice of the Constitutional Court of BiH. The provision of Article IX.2 of the BiH Constitution was considered in one case dealing with the reduction of salaries of the judges of the BiH Constitutional Court, which the Constitutional Court of BiH assessed as being in contravention of Article IX.2 of the BiH Constitution.³⁹⁰¹ As far as other judicial cases are concerned, the BiH Constitutional Court primarily used this provision as an auxiliary instrument in defining term: “vital national interest of the constituent peoples” under Article IV.3(e) and (f) of the BiH Constitution.³⁹⁰²

Paragraph 3 under Article IX of the BiH Constitution provides for a general clause regulating the ethnic proportion within State institutions: officials appointed to positions in the institutions of Bosnia and Herzegovina, as a rule, reflect the composition of peoples of Bosnia and Herzegovina. Understanding and interpreting this provision largely depends on other constitutional provisions, such as, for instance, the constitutional aim of establishing democracy and pluralism, (the 3^rd line of the Preamble of the BiH Constitution and Article I.2 of the BiH Constitution), the prohibition of discrimination (Article II.4 of the BiH Constitution) or the notion of a vital national interest of constituent peoples

(Article IV.3(e) and (f) of the BiH Constitution). As to the type and position of public office which must be filled according to the system of representation, paragraph 3 is limited to State institutions. However, that rule did not prevent the Constitutional Court to apply this constitutional provision in cases dealing with public office at lower levels.³⁹⁰³

The BiH Constitutional Court has also extensively interpreted this provision with respect to the protected circle of persons. This provision is not only related to the representatives of the constituent peoples, but also to the representative of Others and to national minorities.³⁹⁰⁴ However, the constitutional obligation is not required for introducing the ethnic proportion or quota system as may be concluded from the reasoning of the Decision of the Constitutional Court of BiH No. U 7/05. Namely, in this Decision the BiH Constitutional Court argued that the manner of election of delegates for the Assembly of the Town of Istočno Sarajevo, according to the liberal principle “one-man-one-vote”, is in accordance with the BiH Constitution for the reason that none of the constituent peoples enjoy any privileged position.³⁹⁰⁵ It seems that the Constitutional Court of BiH ignored the fact that in such cases the Bosniaks, Croats and Others, due to their de facto minority position, will never have any political role in the relevant assembly as long as the ethnic criterion constitutes the sole and exclusive point of reference for casting a vote. It appears that the BiH Constitutional Court did not consider the previously adopted opinion and explicit position of the BiH Constitutional Court that “efficient participation of the constituent peoples in the bodies of authority” constitutes a very important element of “vital national interest”.³⁹⁰⁶ That is to say that by such a conclusion the BiH Constitutional Court has apparently opted for not guaranteeing and not protecting the so- called positive discrimination. Accordingly, this new constitutional practice of the BiH Constitutional Court interprets Article IX.3 of the BIH Constitution as a provision prohibiting only negative discrimination. In other words, should the legislature opt for a proportional system of power in certain case; in other words, if one opts for a system “reserving” a certain percentage or number of public offices for the members of certain ethnic groups, then one must comply with the principle of prohibition of negative discrimination. Thus, if certain privileges for participation in power are granted only to certain groups, the composition of peoples of Bosnia and Herzegovina will not be reflected as required under Article IX.3 of the BiH Constitution.³⁹⁰⁷ By applying this practice, the BiH Constitutional Court has derogated from its previous constitutional practice in Case No. U 5/98-III, as well as from the leading ideas and thinking about pluralistic society (the 3^rd line of the Preamble of the BiH Constitution). It will be considered that the impossibility of the so-called factual³⁹⁰⁸ minorities to politically participate in the bodies of authority is in accordance with the BiH Constitution until the factual majority ensures formally and legally special rights of participation for itself.