Succession

In July of 2000, President Izetbegovic, the Bosniak member of the Presidency, announced that he would resign from his position before the end of his term. Article V.1(a) calls for any vacancy to be “filled from the relevant Entity in accordance with a law to be adopted by the Parliamentary Assembly of BiH.” However, there was no law at the time that President Izetbegovic announced his intention to resign and therefore no legal mechanism for filling the vacancy.

In response, the Parliamentary Assembly adopted the Law on Succession of a BH Presidency Member.²⁷⁹⁴ That law required that a successor be selected from among the members of the House of Representatives of the same ethnicity and elected from the same Entity as the outgoing member of the Presidency. Members of the House of Representatives elected from the same Entity and of the same ethnicity as the outgoing member select his successor. The selection by the House of Representatives must be confirmed by the House of Peoples. The law fulfills the only two Constitutional requirements, namely that the replacement candidate be “from the relevant Entity” and that s/he be of the correct ethnicity. The law additionally reflects a policy preference for selecting a replacement from among members of the House of Representatives who have been elected in a direct election, as opposed to filling the vacancy from among members of the House of Peoples, other members of government, or from the private sector.

Shortly after the adoption of the Law on Succession of a Member of the BH Presidency Member, the High Representative imposed amendments to the law.²⁷⁹⁵ The High Representative objected to a provision in the law that would have effectively allowed the House of Peoples to block nominations from the House of Representatives and then allow the appropriate ethnic caucus of the House of Peoples to fill the vacancy. This created a possibility that three members of a five-member caucus could select a replacement member of the Presidency. In the case of President Izetbegovic, it created the possibility that three of the five Bosniak members of the House of Peoples could block an appointment by the House of Representatives and then fill the vacancy with their own nominee. The High Representative believed that the possibility that three people, themselves not directly elected, could ultimately appoint a member of the Presidency would be undemocratic.

The High Representative also objected to a provision in the law that would have allowed the House of Representatives to fill a vacancy in the Presidency in the closing days of its mandate. At the time, the elections for the House of Representatives and for the Presidency were staggered, thus creating the possibility that an outgoing House could appoint a replacement member of the Presidency who would serve for two more years, until the next presidential election. This would have been the case for President Izetbegovic who announced that he would step down in October 2000 with elections for the House of Representatives scheduled for November, but presidential elections not scheduled until 2002. The High Representative believed that this provision could encourage a member of the Presidency and his party to decide the timing of a retirement based on a calculation about whether the existing House of Representatives or the new one would best suit their interests.²⁷⁹⁶ The High Representative believed that the vacancy in such cases should be filled on an interim basis by the outgoing House of Representatives and permanently filled by the new House of Representatives following the election.

The High Representative’s decision addressed both objections. It eliminated the possibility that the House of Peoples could ultimately fill the vacancy. As amended, the law now allows the House of Representatives to fill the vacancy without approval from the House of Peoples if the House of Peoples has rejected two previous nominees. The High Representative’s amendments also specified that, if the vacancy occurs within 120 days of the end of the House’s mandate, the vacancy would be filled on an interim basis by the appropriate speaker or deputy speaker of the House while the permanent replacement would be named after the election by the newly elected House of Representatives. In 2002, the mandates of the House of Representatives and the Presidency were harmonised, thereby eliminating the original reason for this amendment. Now, the interim replacement by the speaker or deputy speaker still takes place within 120 days of the end of the House of Representatives/Presidency mandate, but the vacancy is then automatically filled by the election of the new members of the Presidency.