Chair or Co-Chairs of the Council of Ministers

Article 3, paragraph 1 of the 1997 Law provided for the appointment of two Co-Chairs of the Council of Ministers by the Presidency.²⁸¹⁸ Under the Rules of Procedures of the Council of Ministers in force at the time, “the two Co-Chairs were to take turn as Chair”. By doing so, the Law sought to distribute the two positions of Co-Chairs and the position of Vice-Chair between the three constituent peoples. The Constitutional Court had then to decide whether such arrangements were a violation of Article V.4 of the Constitution. They did so in two separate decisions:

In the first decision,²⁸¹⁹ the Court had to decide whether a Co-Chair of the Council of Ministers acting alone could exercise the competencies granted to the Chair of the Council of Ministers under the Constitution. In particular, the Court had to decide whether a Co-Chair could refer a dispute to the Court under Article VI.3 (a) of the Constitution.

On that occasion, the Court decided that “it could follow from an interpretation that the two Co-Chairs must act jointly that any access to the Constitutional Court by a Chair of the Council of Ministers may effectively be excluded if they block each other. Such an interpretation could then have the effect that none of the two Co-Chairs can exercise this responsibility. This would violate the principle of effectiveness which flows from Article VI.3 of the Constitution (…)”.

By doing so, the Court held that the provision of the Law which obliges the Co- Chairs to act jointly conflicts with the constitutional principle of effectiveness and that such a constitutional principle, when there is serious doubt as to the constitutionality of a Law, must be given precedence over such a law.

In a further Decision,²⁸²⁰ the Court this time had to assess the constitutionality of the provisions of the law providing for the existence of the Co-Chairs, the Vice-Chair and the necessity for the Co-Chairs to obtain an opinion of the Presidency when nominating ministers. The Court ruled that the “[…] provisions of the law defining the Co-Chairs and the Vice-Chairs of the Council of Ministers are not in accordance with the Constitution of Bosnia and Herzegovina, since the Constitution establishes the traditional function of a Prime Minister designate who also appoints the ministers […]”.