Introduction

Unlike the Chapters related to other institutions of Bosnia and Herzegovina, the Section related to the Council of Ministers is relatively short. It contains one paragraph that is included in the Chapter related to the Presidency of Bosnia and Herzegovina.

From an historical perspective, the inclusion of the provision on the Council of Ministers within the Chapter concerning the Presidency would seem to reflect the predominance of the Presidency as the main executive institution of Bosnia and Herzegovina. The discussions that led to the signing of the GFAP confirm this. By way of illustration, the Further Agreed Basic Principles of 26 September 1995,²⁸¹¹ which describe the future institutions of BiH, only include a minimalist reference to the cabinet that would be made up “of such ministers as may be appropriate”.

We will see, however, that the practice so far has been to give the Council of Ministers relative prominence over the Presidency.

Sparse provisions on the Council of Ministers also explain why the case law of the Constitutional Court on this subject is relatively limited, and very few articles have been written on the subject. Therefore, most of the content of this contribution is based on the practice of the institutions of Bosnia and Herzegovina over the last twelve years and on the few Decisions of the BiH Constitutional Court that touch upon the work and functioning of the Council of Ministers.

Finally, it is worth noting that the constitutional provision concerning the Council of Ministers only regulates matters pertaining to the nomination, election and composition of the Council of Ministers. It also contains an extremely broad sentence on the competencies of the Council. In practice, many discussions concerning this provision have focused on the composition of and decision- making in the Council of Ministers.

Such provisions must be interpreted in conjunction with other provisions of the Constitution of BiH. In addition, consideration should be given to the various Laws that have regulated the Council of Ministers since the signing of the GFAP:

■ The first Law on the Council of Ministers and Ministries of Bosnia and Herzegovina (hereinafter: the 1997 Law) was adopted by the BiH Parliamentary Assembly of Bosnia and Herzegovina in December 1997;²⁸¹²

■ In April 2000, the BiH Parliamentary Assembly adopted a new Law on the Council of Ministers (hereinafter: the 2000 Law);²⁸¹³

■ On the basis of a draft Law produced in November 2002 by representatives of political parties elected into the House of Representatives of the BiH Parliamentary Assembly (hereinafter: the House of Representatives), the High Representatives enacted a new Law on the Council of Ministers of Bosnia and Herzegovina on December 2, 2002 (hereinafter: the 2002

Law).²⁸¹⁴ The Law was then adopted by the Parliamentary Assembly of Bosnia and Herzegovina and published in the Official Gazette of Bosnia and Herzegovina.²⁸¹⁵ This Law has been in force since that time and has been amended on a number of occasions subsequently,²⁸¹⁶ in particular to include new ministries or institutions.

The changes and amendments to the Law of 19 October 2007, enacted by the High Representative, should be singled out: they aimed to streamline the work of the Council of Ministers, but their enactment triggered a major political crisis which led to the resignation of the Chair of the Council of Ministers. These changes and amendments were then subject to an authentic interpretation enacted by the High Representative on 3 December 2007.²⁸¹⁷

The fact that the legislation on the Council of Ministers has been changed little or not at all over the last ten years can also be explained by the interest that the international community has had in reinforcing the Council of Ministers. As an illustration of that interest, the communiqué issued by the Steering Board of the Peace Implementation Council at its Brussels meeting on 7 December 2000 may be recalled. In it, “the necessity of cooperation in the building of a functioning state, particularly through an effective Council of Ministers […] capable of interaction on a basis of equality with other states and other organisations” was emphasised.