Article IX.3 and V.4(b)

The Constitution limits the right of the Chair of the Council of Ministers concerning the nomination of the Ministers by ensuring representation of the peoples of Bosnia and Herzegovina (Article IX.3) and requesting that no more than two-thirds of all the Ministers be appointed from the territory of the Federation (Article V.4(b)). These two requirements have been unequally applied and have in fact resulted in the application of a principle of parity between constituent peoples. Such an application was incorporated in the 2002 Law,²⁸³⁰ which provides that “[t]he overall composition of the Council of Ministers shall, throughout its mandate, be and remain fully respectful of the Constitution of Bosnia and Herzegovina and in particular Article V.4(b) and IX.3 thereof and, subject thereto, shall ensure equal representation of the constituent peoples of Bosnia and Herzegovina”.

It is dubious that the combined application of these two constitutional provisions would lead to a principle of equal representation or parity of the constituent peoples in the Council of Ministers. In this respect, the following needs to be emphasised:

■ Article V.4(b) does not establish any principle of constituent people representation. Rather, it puts a ceiling on representation of Ministers residing in the Federation, regardless of their ethnic/national background;

■ Article IX.3 contains a general principle of representation of peoples of Bosnia and Herzegovina which applies to all institutions of Bosnia and Herzegovina. Although equal representation does not per se violate this provision, it is also clear that the provision does not oblige the granting of equal representation to constituent peoples.²⁸³¹

Again, the case of the amendments to the Law on Council of Ministers of 19 October 2007 enabling a Deputy Minister to temporarily perform the duties of Minister from the day of resignation, dismissal or permanent inability of a Minister until his/her successor takes office illustrates the problem of interpretation of these provisions.

In its opinion on the Law on Changes and Amendments to the Law on the Council of Ministers of BiH of 19 October 2007, the Expert Group of the Government of Republika Srpska claimed that this “solution violates the provisions of Article V.4(b) and IX.3 of the Constitution of BiH as it created the possibility that at a certain time period the members of the Council of Ministers may only be from the two constituent peoples, i.e., from one Entity”.²⁸³²

Both provisions of the Constitution are provisions that oblige the appointing authorities, in this case the Chair of the Council of Ministers and the House of Representatives, to respect a certain balance between peoples and Entities. As a result, the Constitution obliges the appointing authorities to re-establish the proper balance in the Council of Ministers expediently whenever such balance is affected by resignation(s) or permanent incapacitation(s). However, the fact that parity is not respected for a temporary period does not seem to be an issue under the Constitution and does not in any way affect the Council of Ministers’ ability, under the Constitution, to perform its duty.

Finally, the idea that the combined application of Article V.4(b) and Article IX.3 of the Constitution establish a principle of parity between the constituent peoples of Bosnia and Herzegovina whereby the Serb Ministers are elected from the territory of the Republika Srpska and the Croat and Bosniak Ministers from the territory of the Federation seems to collide with the stance taken by the Constitutional Court of Bosnia and Herzegovina in its Decision U 5/98 of 1 July 2000 in which the Court did not “share the views of the representatives of the People’s Assembly of the Republika Srpska and the House of Peoples of the Federation that the provisions of the Constitution of BiH (concerning the composition of the two Houses of the Parliamentary Assembly of BiH, the Presidency, the Council of Ministers and the Constitutional Court, as well as the respective electoral mechanisms) allow for the general conclusion that these representation mechanisms reflect the territorial separation of the constituent peoples in the Entities”.²⁸³³

The Court further stated that

“insofar as a certain number of Ministers shall be appointed from the territory of the Federation or the RS according to V.4(b), […] all these provisions demonstrate nothing but the fact that either the territory or specific institutions of the Entities serve as [a] legal point of reference for the elections of the members of the institutions of BiH.”²⁸³⁴