Functioning of the Council of Ministers

The Constitution does not specifically address the question of decision-making in the Council of Ministers. However, some have argued that the implied principle of ‘parity of peoples and the parity of Entities’ (sic) constitutes the essence of the organisation of the State of Bosnia and Herzegovina²⁸⁴¹ and have concluded that such an essential principle must be reflected in decisions taken by, inter alia, the Council of Ministers.

This was one of the prevailing arguments that led the authorities of Republika Srpska to dispute the amendments enacted by the High Representative on 19 October 2007. As noted above, in order to overcome blockage in the work of the Council of Ministers, these amendments sought to streamline the rules on quorum and voting in the Council of Ministers.

In particular, the amendments made it possible for the Council of Ministers to hold a session if more than one half of its members are present. The previous rule was that the Council of Ministers could only meet if a majority of its members were present, provided that at least two representatives of each constituent people were present. In order to prevent possible obstruction of the work of the Council of Ministers by pure absenteeism, the condition that at least two members from each constituent people should be present for a session to be held was deleted.

Concerning voting in the Council of Ministers, the 2007 amendments included an acknowledgement of the distinction between decisions that are in the final instance taken by the Council of Ministers (appointments, bylaws, etc.) and decisions taken by the Council of Ministers on issues that are in the final instance taken by the Parliament (proposed laws) that were already included in the 2002 Law. However:

On issues going to Parliament: the 2007 amendments changed the system and provided for these issues to be adopted by a majority of those present and voting while, under the 2002 Law, these decisions had to be adopted by a majority of the members of the entire Council of Ministers. In practice, the rule included in the 2002 Law meant that absent ministers were considered as voting against a decision of the Council of Ministers.

On final decisions of the Council of Ministers: the 2007 amendments clarify the requirement that such decisions must be adopted by a consensus of those present and voting and not by a consensus of the entire Council of Ministers. If such a consensus cannot be reached, the amendments provide that a decision could be taken by the majority of those present and voting including one (and not, as previously, two) representative of each constituent people. As a result, even though the number of representatives of constituent peoples required to vote for a decision in the absence of a consensus was decreased from two to one, constituent peoples, if they have representatives at the session, still have a possibility to reject a decision.

A number of political decisions were adopted by the various authorities of Republika Srpska during the two months that followed the enactment of the 2007 amendments. This culminated in the adoption by the National Assembly of Republika Srpska of a Declaration²⁸⁴² by which the National Assembly states, inter alia, that the 2007 amendments derogate the procedure of decision- making through consensus, i.e., the Constitutional principle of Constitutional parity under Article IX.3 of the Constitution, and concludes that the Constitution has essentially been changed by such amendments insofar as the “the content of the imposed law undermines the interests of constituent peoples”.

As we have seen, Article IX.3 does not, per se, include any rule of decision- making. In its Partial Decision No. III in the matter U 5/98, of 1 July 2000, the Constitutional Court stated that:

“[…] no provision of the Constitution allows for the conclusion that these special rights for the representation and participation of constituent peoples in the institutions of BiH may be applied as well for other institutions or procedures. On the contrary, insofar as these special collective rights might violate the non-discrimination provisions, […] they are legitimized solely by their Constitutional rank and therefore, have to be narrowly construed”.²⁸⁴³

In light of this, it seems difficult to argue that Article IX.3 offers a guarantee of consensus in the decision-making process inside the Council of Ministers. Whenever the drafters of Annex IV to the GFAP wanted to provide such a guarantee, the mechanism to do so was regulated in the Constitution.²⁸⁴⁴ As such, even though the Constitution establishes standards of representation of the Entities and constituent peoples in the Council of Ministers, it is difficult to endorse the idea that consensus decision-making is a Constitutional principle and that any departure from such a principle would undermine the interests of constituent peoples. This conclusion seem to be shared by the Constitutional Court which, in its Decision U 8/04 of 25 June 2004 held the following:

“Since effective participation of ethnic groups is an important element of democratic institutional structures in a multi-ethnic state, democratic decision-making would be transformed into ethnic domination of one or even more groups if, for instance, absolute and/or unlimited veto-power would be granted to them, thereby enabling a numerical minority represented in governmental institutions to forever [impose] its will on the majority.”

It is also worth mentioning that, in order to bring the political crisis to an end, the High Representative issued an authentic interpretation by which it is recognised that when a final decision is taken by the Council of Ministers by a majority which must include the vote of at least one member of each constituent people, the “best effort [shall] be made in order to ensure that the vote of at least one member of each constituent people […] be cast by the Chair of the Council of Ministers and the Deputy Chairs of the Council of Ministers”. In other words, only the vote of the Chair and/or, as appropriate, the Deputy Chairs of the Council of Ministers can be counted as a vote of a particular constituent people. Besides the choice of an authentic interpretation to change the meaning of a clear provision of the 2007 amendments – which would exceed the scope of this commentary – the decision to issue such an interpretation reflects political preoccupations and therefore cannot be seen as a recognition of an hypothetical right to consensus decision-making in the institutions of Bosnia and Herzegovina.