A. Paragraph 1: Amendment Procedure

Paragraph 1 regulates the procedure for making amendments to the BiH Constitution. Amending the BiH Constitution requires that the relevant decision be taken by the Parliamentary Assembly, “including a two-thirds majority vote of those present and voting in the House of Representatives”. Therefore, unlike, for example, the provision of Article IV.2(b) of the BiH Constitution, the majority referred to in Article X.1 of the BiH Constitution is determined exclusively in relation to those members that are present and voting in the House of Representatives. Accordingly, if 22 members constitute a quorum required in this House for decision-making, amending the BiH Constitution requires that at least 15 members vote.³⁹⁰⁹

Other aspects of this procedure are regulated by the Rules of Procedure of both Houses of the Parliamentary Assembly of BiH.³⁹¹⁰ Namely, the procedure for amending the BiH Constitution may be proposed by the BiH Presidency, Council of Ministers, House of Representatives of the Parliamentary Assembly of BiH and House of Peoples of the Parliamentary Assembly of BiH; also, the general provisions related to the adoption of laws apply to the further procedure. Draft amendments to the BiH Constitution are always submitted to the BiH Presidency and the Council of Ministers for their comments. There is an exception in cases where those authorities submit a proposal for amendments to the BiH Constitution. In both Houses of the Parliamentary Assembly of BiH, deliberations on proposals for amendments to the BiH Constitution are held in public.

Pursuant to Article X.1 of the BiH Constitution, amendments to the BiH Constitution are also “a legislative decision” within the meaning of Article IV.3(c) of the BiH Constitution. Nevertheless, taking into account that Article X.1 of the BiH Constitution requires a qualified majority, it is lex specialis in relation to the first sentence of Article IV.3(d) of the BiH Constitution, where a simple majority is required to adopt laws. Thus, the constitution maker – as in any democratic constitution – imposed the more strict criteria for amending the Constitution than those related to the adoption of or amendments to laws.

However, it cannot be noted from the BiH Constitution itself, on the face of it, whether decisions amending the BiH Constitution must be subject to the standards, i.e., a mechanism for the protection of vital national interest of one or more constituent peoples in the House of Peoples (Article IV.3(e) and (f) of the BiH Constitution). One should explain why this dilemma exists. Namely, the issue related to a violation of vital national interest based on a decision amending the BiH Constitution, in the worst-case scenario, shall be decided by the Constitutional Court of BiH, pursuant to the second sentence of Article IV.3(f) of the BiH Constitution. In such cases, the Constitutional Court of BiH usually examines, on the one hand, whether a matter relates to a vital national interest and, if so, whether, on the other hand, there is a violation of the vital national interest. However, in such a situation, it would be necessary first to clarify how far the BiH Constitutional Court’s jurisdiction reaches. Namely, in the case described earlier, the Constitutional Court of BiH should examine the conformity with the Constitution of BiH of a (potential) constitutional provision (the constitutional mechanism of “vital national interest”, which stems from line 10 of the Preamble to the BiH Constitution in conjunction with Article IV.3(e) and (f) of the BiH Constitution). The Constitutional Court of BiH, pursuant to the first sentence of Article VI.3 of the BiH Constitution, is a “guardian” of the BiH Constitution. Accordingly, it has no jurisdiction³⁹¹¹ to render ineffective such provisions or to declare them unconstitutional.³⁹¹² Therefore, the Constitutional Court of BiH could not have jurisdiction to review the provisions that originally derive from the constitution maker. Nevertheless, there are counter arguments, too. First, the Constitutional Court of BiH could have jurisdiction to indicate inconsistencies to the constitution maker between the relevant constitutional provisions. In addition, constitutional provisions amending the original text of the BiH Constitution have completely different importance until they have been published (Article IV.3(h) of the BiH Constitution). Furthermore, Article IV.3(e) of the BiH Constitution, according to its linguistic meaning, makes no distinction between decisions amending the BiH Constitution and decisions enacting laws and other legislative acts. Finally, the constitution maker consciously stipulated that decisions amending the BiH Constitution require a qualified majority only in the House of Representatives of the Parliamentary Assembly of BiH given that a qualified majority (as necessary) is already incorporated in the House of Peoples of the Parliamentary Assembly of BiH (Article IV.3(e) and (f) of the BiH Constitution). Accordingly, the constitution maker had no need to emphasise it through a special provision. These reasons corroborate the view that amendments to the BiH Constitution are subject to the procedure foreseen for the protection of vital national interest in the House of Peoples of the Parliamentary Assembly of BiH.³⁹¹³

Anyway, in adopting future constitutional amendments, one should pose the question as to whether constitutional amendments, from a legal point of view, can be voted (a) without or (b) against the votes (outvoting) of all delegates, i.e., all members of the Parliamentary Assembly of BiH (aa) from among one constituent people or (bb) one Entity. The answer to this question depends on the following: whether all members are present when voting is carried out and whether it regards the House of Representatives or the House of Peoples.

Theoretically, when all members of the House of Representatives are present, members of one constituent people may be outvoted unless they have at least one-third of the votes plus one more vote (i.e., at least 15 votes), or two- thirds of the votes from one Entity (i.e., at least 19 members from the FBiH or 10 members from the RS). On the other hand, one Entity cannot be outvoted in a case where all members from one Entity vote “against”. Such a result matches the meaning and purpose of Article VI.3(e) of the BiH Constitution, i.e., the protection of a vital national interest of the Entities. Contrary to the aforementioned, there is no possibility of outvoting one constituent people in the House of Peoples of the Parliamentary Assembly of BiH, provided that the Constitutional Court of BiH (this includes its jurisdiction to take a decision on the merits of a case), within the procedure prescribed in Article IV.3(e) and (f) of the BiH Constitution, corroborates that amendments to the BiH Constitution are destructive to the vital national interest of the respective people. In such a case, the adoption of amendments to the BiH Constitution is possible only if the majority of the delegates to the caucus of a certain constituent people vote “in favour”, which is unlikely as they at the same time call for protection of their vital national interest. However, in case the Constitutional Court does not establish that amendments to the BiH Constitution are destructive to the vital national interest of the respective people, amendments can still be adopted in the House of Peoples contrary to the will of one constituent people.

Taking into account the number of delegates, i.e., members of each constituent people in both chambers of the Parliamentary Assembly of BiH, these conclusions are reflected as follows: Bosniaks and Serbs³⁹¹⁴ are in a position that they can block amendments to the BiH Constitution at any time, and Croats can do so only if their vital national interest is threatened. On the face of it, such a result is discriminatory as to the Croat people. However, the basic principle of Article IV.3(d) of the BiH Constitution shows that only the vital interest of the Entities is protected in the House of Representatives, and the (ethnic) vital interests of groups are not considered. However, what can become problematic in respect of this matter is that, unlike the exercise of the right to protect vital national interests, the justification of which can always be reviewed by the Constitutional Court of BiH, there is no possibility of legal review as to whether or not the exercise of the “so called” Entity veto is justified.³⁹¹⁵ Therefore, the functionality of the Parliamentary Assembly of BiH may be hindered by way of the “Entity veto” exercised in an arbitrary manner. This particularly emerges in cases where the “Entity veto” is exercised seemingly for protection of the Entities’ vital interest, while the protection of the vital national interest of one of the constituent peoples is hidden behind the “Entity veto”. Taking into account ethnic homogeneity, the danger comes mainly from the Republika Srpska.³⁹¹⁶

However, the absence of delegates, i.e., members who come from an Entity, that is to say representatives of a constituent people, will lead to a different voting outcome. Article 133, paragraph 1 of the Rules of Procedure of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina stipulates that amendments to the BiH Constitution shall be subject to the basic legislative procedure. Also, neither the Rules of Procedure of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina (Article 67 paragraph 2),³⁹¹⁷ nor the BiH Constitution (Article IV.2(b) and the first sentence of Article IV.3(d)) contain any provision for regulating an issue that might be raised in case members who come from one Entity or who belong to one constituent people failed to comply with the obligation³⁹¹⁸ to attend sessions. Indeed, it is true that the House of Representatives ought to make efforts in order to secure at least one-third of members from each Entity (the second sentence et seq. of Article IV.2(d) of the BiH Constitution). Furthermore, this chamber cannot adopt a decision contrary to the will of a two-thirds vote of the members from one Entity. However, all those provisions imply that members, in general, should attend sessions and vote. The BiH Constitution does not contain any provision for regulating any consequences stemming from the fact that one-third of the members from each Entity are not present at all. Consequently, the BiH Constitution can be amended irrespective of whether or not members from one Entity or members representing one constituent people are present and, if so, how many of them are present, provided that the quorum requirement (Article IV.2(b) of the BiH Constitution) and the majority requirement (Article X.1 of the BiH Constitution, Article IV.3(d) of the BiH Constitution) are satisfied.³⁹¹⁹

Contrary to the aforementioned, the House of Peoples of the Parliamentary Assembly of BiH cannot function at all if delegates of any one constituent people are absent, given that this chamber may adopt decisions only if a quorum is present, which consists of nine members, provided that at least three Bosniak, three Croat, and three Serb Delegates are present.³⁹²⁰ Neither the Rules of Procedure of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, nor the BiH Constitution, stipulate a mechanism for resolving situations where it is necessary to end a blockage in the House of Peoples caused by the absenteeism of delegates of any one constituent people. Pursuant to Article 74, paragraph 4 of the Rules of Procedure of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, an issue that cannot be considered due to the absence of the required majority shall be postponed to the next session.

Finally, we may conclude as follows: when it comes to amendments to the BiH Constitution, any one constituent people, but not an Entity, may be outvoted in the case that a session of the House of Representatives is attended by all members. The justification for using the Entity veto power is not subject to legal review. Consequently, the functionality of the State depends on the will of delegates elected from either Entity to the House of Representatives. When all delegates to the House of Peoples are present, one constituent people can be outvoted only if amendments to the BiH Constitution are not destructive to the vital national interest of that people. The BiH Constitution provides protection against arbitrary use of the mechanism for the protection of the vital national interest. The House of Representatives will not be prevented from its work in the case that all delegates representing one people or one Entity are absent, provided that the quorum requirement and the majority requirement are satisfied. On the contrary, the work of the House of Peoples will be blocked if delegates representing one constituent people are not present. Consequently, the functionality of the State at present is not ensured if the decision-making process in this chamber is blocked through a boycott of sessions.