Examining vital national interest (Article IV. 3(f) of the BiH Constitution)

The Parliamentary shall have two chambers: the House of Peoples and the House of Representatives.

1. House of Peoples

The House of Peoples shall comprise 15 delegates, two-thirds from the Federation (including five Croats and five Bosniacs) and one-third from the Republika Srpska (five Serbs). […]

3. Procedures. […]

c) All legislation shall require the approval of both chambers.

d) All decisions in both chambers shall be by majority of those present and voting. […]

e) A proposed decision of the Parliamentary Assembly may be declared to be destructive of a vital interest of the Bosniac, Croat, or Serb people by a majority of, as appropriate, the Bosniac, Croat, or Serb Delegates selected in accordance with paragraph l(a) above. Such a proposed decision shall require for approval in the House of Peoples a majority of the Bosniac, of the Croat, and of the Serb Delegates present and voting.

f) When a majority of the Bosniac, of the Croat, or of the Serb Delegates objects to the invocation of paragraph (e), the Chair of the House of Peoples shall immediately convene a Joint Commission comprising three Delegates, one each selected by the Bosniac, by the Croat, and by the Serb Delegates, to resolve the issue. If the Commission fails to do so within five days, the matter will be referred to the Constitutional Court, which shall in an expedited process review it for procedural regularity.

Pursuant to Article IV.3(f) of the BiH Constitution, the Constitutional Court of BiH shall review a request for “procedural regularity” if there is a blockage in the process of harmonisation of a legal act arising from the fact that the majority of representatives of one constituent people in the House of Peoples declared that the decision is destructive to the national interest. That assessment did not get the support of the majority of representatives of an (other) ethnic group and the commission which was established for the harmonisation purposes has failed to reach an agreement, i.e., to achieve success. A list of the substantive elements of a “vital national interest” or a definition of that term does not exist in the BiH Constitution. However, the Constitutional Court does not see the vital national interest as a term having no meaning, but rather considers that it protects certain principles without which a society with the differences protected under the constitution could not function efficiently. According to the opinion of the Constitutional Court of BiH, an integral part of a vital interest of an ethnic group depends on or is viewed within the context of its “constituency”. In the very text of the Constitution there is a clear borderline according to which the Constitutional Court shall review the legislative procedure only in order to establish whether there was any procedural irregularity. The Constitutional Court extended its jurisdiction and included the issues as to whether the subject of dispute is the case which falls within the mechanism of the protection of a “vital national interest” and whether the national vital interest of any of the three constituent peoples has been violated. The Constitutional Court, as the highest court in the country, concluded that it had to protect the Constitution and resolve possible blockages within the legislative procedure. The Constitutional Court notes that according to Article VI.3(a) of the BiH Constitution, this Court is definitely responsible for the review of the constitutionality of laws (ex post), as well as for the preventive review which is aimed at resolving issues of blockages in the legislative procedure, which are the same as those existing in other legal systems like, for instance, in the French legal system. This step of the BiH Constitutional Court, which was taken with full confidence, is very important for the efficiency of the government as a whole.