Relationship between the Council of Ministers and the Entities
The growing difficulty to construct a Council of Ministers reflects, to a large extent, the interest that the Entities have in controlling the work of the institutions of Bosnia and Herzegovina and, in particular, of the Council of Ministers. The participation of political parties in the Council of Ministers seems to be conditioned on their participation in the Entity governments. As a result, the Council of Ministers acts more and more as a proxy of the Entities. The Council of Ministers has slowly become the place where the Entities put forward their views about the policies of the State. If this situation is not specific to Bosnia and Herzegovina, as noted by Marc Uyttendaele concerning the Belgian government, it transforms the State Government into a mirror image of the Entities and therefore defeats the main purpose of Federalism which is to enable every level of government to have a government that is in sync with its sociological reality.2837 As an illustration of that situation, one could refer to the growing tendency of the RS authorities to adopt resolutions or declarations on matters that fall within the realm of the institutions of Bosnia and Herzegovina. This is not only true for matters that touch upon fundamental questions related to the organisation of Bosnia and Herzegovina2838 but also more ‘mundane’ issues such as the support of Republika Srpska to the adoption of a proposed law by the Council of Ministers.2839 Although these interventions of the Entities in the decision-making process of State institutions are nothing more than political declarations,2840 the political reality is that they have been followed by the members of the Council of Ministers from the Entity from which it emanates, thereby creating a wrong perception that the responsibilities of the State and its institutions stem from a delegation by the Entities rather than the Constitution, and that the State institutions are in essence “joint institutions” of the two Entities.
Footnotes
Marc Uyttendaele, Précis de Droit Constitutionnel Belge, 2001, Brussels, Bruylandt, p. 335
See, for instance, the role played by the RS institutions in the crisis that followed the enactment by the High Representative of amendments to the Law on the Council of Ministers [see text below; see also the Resolution adopted by the RS National Assembly on 22 February 2008 which addresses the issue of the jurisdiction of the State of Bosnia and Herzegovina (OG of RS, No. 20/08)].
See, for instance, the information of the Government of Republika Srpska adopted on 4 September 2008 by which it decided not to support the Draft Law on Cultural Monuments of Bosnia and Herzegovina prepared under the aegis of the Minister for Civil Affairs on the basis that there is no Constitutional basis for its adoption at the level of Bosnia and Herzegovina.
The Panel for Protection of Vital National Interest of the Constitutional Court of Republika Srpska has indicated that such acts of the RS National Assembly (RSNA) only represent act(s) by which the political position of the RSNA is expressed and which by their legal nature/character, their content and subject-matter do not constitute legally binding acts and/or general legal acts and therefore cannot be subject to review by the Constitutional Court of RS. See for instance, decisions of the VNI Panel of the Constitutional Court of RS in cases: U 4/05 of 10 June 2005, UV-5/05 of 29 September 2005, UV-2/06 of 7 September 2006 and UV-3/06 of 7 September 2006 available at: <http://www.ustavnisud.org/html/vijece.html>.