Constituent people’s representation and the Chair of the Council of Ministers

As a result of the above referenced Decision of the Constitutional Court, a new Law was adopted in 2000. The 2000 Law explored new methods of representation of constituent peoples within the main executive functions and therefore provided for:

■ the obligation for the Chairman of the Council of Ministers not to be from the same constituent people as the Chair of the Presidency; and

■ the limitation of the term of office of the Chair to eight months.

In practice, this meant that a new process for electing a Chair and the Council of Ministers as a whole had to be conducted every eight months, or even less if the rotation schedule of the Presidency led to the Chair of the Council of Ministers and the Chairman of the Presidency being representatives of the same constituent people. In practice, five governments were in place over a period of 27 months and only two of them lasted for more than five months. Although this practice did not raise any question with respect to its consistency with the Constitution, it had a serious impact on the continuity of the work of the Council of Ministers and on the ability of the Council of Ministers to perform its duties.

The Law enacted in 2002 therefore sought to depart from such practice by including a new Article 9, paragraph 1 which provides that the Chair of the Council of Ministers is nominated “at each new mandate of the Parliamentary Assembly of Bosnia and Herzegovina respectful of the principle of representation according to IX.3 of the Constitution”. This provision of the Constitution, sometimes referred to as the ‘general representativeness clause’, has often been used to justify parity between constituent peoples in the institutions of Bosnia and Herzegovina²⁸²¹ at any given time. However, the new Article 9 paragraph 1 constitutes a unique example of the legal interpretation of that clause in order to justify the rotation of constituent peoples’ representatives in a position across mandates of the Parliamentary Assembly. Although such a practice presents the advantage of re-assuring constituent peoples without affecting the continuity of the work of the Council of Ministers, it is unlikely that an aggrieved party would be able to dispute the election of a Chair that would be made in violation of the principle of alternation between constituent peoples.