CONSTITUTIONAL COURT OF BOSNIA AND HERZEGOVINA

DECISION

Having regard to Article VI.3 (a) of the Constitution of Bosnia and Herzegovina and Articles 54 and 56 of the Rules of Procedure of the Constitutional Court of Bosnia and Herzegovina, at its session held on 14 August 1999, the Constitutional Court of Bosnia and Herzegovina adopted the following

DECISION

It is hereby established that Articles 3, 5, 6, 7, 9, 10, 11, 12, 13, 15, 19, 20, 21 item 3, 22, 24, 25, 26, 27, 28 and 29 of the Law on the Council of Ministers of Bosnia and Herzegovina and the Ministries of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, No. 4/97) are not in conformity with the Constitution of Bosnia and Herzegovina.

The Parliamentary Assembly of Bosnia and Herzegovina is given a three-month time limit from the date of publication of this Decision in the Official Gazette of Bosnia and Herzegovina to bring the aforementioned provisions of the Law on the Council of Ministers of Bosnia and Herzegovina and the Ministries of Bosnia and Herzegovina in line with the Constitution of Bosnia and Herzegovina.

This Decision shall be published in the Official Gazette of Bosnia and Herzegovina, the Official Gazette of the Federation of Bosnia and Herzegovina and the Official Gazette of the Republika Srpska.

REASONS

On 11 February 1999, Mr. Mirko Banjac, Deputy Chair of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina at the time, instituted a request for:

1. The evaluation of the constitutionality of the Law on the Council of Ministers of Bosnia and Herzegovina and the Ministries of Bosnia and Herzegovina (hereinafter: the Law on Ministers and Ministries);

2. The Annulment of the confirmation of the appointment of the Co-chairs of the Council of Ministers of Bosnia and Herzegovina;

3. The Annulment of the confirmation of the appointment of the Vice-Chair, the Ministers and the Deputy Ministers of the Council of Ministers of Bosnia and Herzegovina;

4. The abrogation of all decisions and other acts of the Council of Ministers of Bosnia and Herzegovina “from the date of the unlawful confirmation by the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina to the day of annulment of this unconstitutional and unlawful confirmation by the Constitutional Court of Bosnia and Herzegovina”.

The applicant stated that “Article 6, paragraphs 1 and 2 of the Law on Ministers and Ministries is contrary to Article V.4 of the Constitution of Bosnia and Herzegovina”. As evidence, he further indicated several decisions of the Presidency of Bosnia and Herzegovina, with the same number and date but relating to different offices, which were submitted to the House of Representatives of the Parliamentary Assembly for the confirmation of appointment. Moreover, he stressed that the confirmation of the appointment of the Vice-Chair, the Ministers and the Deputy Ministers had not been carried out according to Article 6, paragraph 2 of the Law on Ministers and Ministries, and that these pieces of evidence on the appointment and the confirmation of appointment, were also in contravention of Article V.4 of the Constitution of Bosnia and Herzegovina.

Based on Article 14, paragraph 1 and Article 19 of the Rules of Procedure of the Constitutional Court of Bosnia and Herzegovina (hereinafter: the Constitutional Court’s Rules of Procedures), the Constitutional Court of Bosnia and Herzegovina (hereinafter: the Constitutional Court) requested on 17 February 1999 the applicant to submit new information on the substance of the request, taking into account the provisions of Articles 14, 26 and 27 of the Constitutional Court’s Rules of Procedure.

In his new request of 24 February 1999, the applicant stresses that the Law on Ministers and Ministries in Article 6 has a provision which is contrary the provisions of Article V.4 of the Constitution of Bosnia and Herzegovina, since “item 1 contains the term Co-chair who is appointed by the Presidency of Bosnia and Herzegovina, and paragraph 2 starts with the function of Vice-Chair, which is not recognized by the Constitution, and further specifies that the Ministers and Deputy Ministers are appointed by the Co-chair, previously obtaining the opinion of the Presidency, and they assume the functions after they have been approved by the House of Representatives. It is quite obvious that there is an inconsistency of the Law on Ministries with the Constitution of Bosnia and Herzegovina, and there is no need for any further explanations.”

Regarding the disputed confirmation of appointments, in his new submission, the applicant mostly stated facts relating to the procedure of decision-making on the confirmation of appointments (although this is not a case instituted according to Article IV.3 (f) of the Constitution). He did not comment on his request for abrogation of the decisions of the Council of Ministers.

Based on Article 16 of the Constitutional Court’s Rules of Procedure, on 10 March 1999, the adopters of the challenged acts – the Parliamentary Assembly of Bosnia and Herzegovina, the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina and the Council of Ministers of Bosnia and Herzegovina – were requested to submit, within a thirty-day period, their reply to the allegations in the request which are related to acts within their competence.

In a letter of Dr. Halid Genjac, the Chair of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina at the time, the Constitutional Court was requested to prolong the time-limit for the reply to the allegations in Mr. Banjac’s request until 30 May 1999, “considering that the work of the Parliamentary Assembly of Bosnia and Herzegovina has come to a standstill”.

The Council of Ministers of Bosnia and Herzegovina, in its reply of 12 May 1999, stated: “The Council of Ministers considers that it should be established, first of all, whether the Law on Ministers and Ministries is unconstitutional, and only then could the question be raised of the legality of the decisions and other acts which the Council of Ministers of Bosnia and Herzegovina adopted according to its authority set forth in the Law on Ministers and Ministries”.

Regarding the request for the evaluation of the constitutionality of the Law on Ministers and Ministries (Official Gazette of Bosnia and Herzegovina, No. 4/97), a preliminary question arises as to whether this Law can be subject of a dispute in terms of Article VI.3 (a) of the Constitution of Bosnia and Herzegovina.

According to Article VI.3 (a) of the Constitution of Bosnia and Herzegovina, the Constitutional Court shall have exclusive jurisdiction to decide any dispute that arises under this Constitution between the Entities, between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina, including but not limited to: whether an Entity’s decision to establish a special parallel relationship with a neighboring state is consistent with this Constitution, including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina; whether any provision of an Entity’s Constitution or law is consistent with this Constitution.

The Constitutional Court accepted that the applicant, by requesting the evaluation of the constitutionality of the Law on Ministers and Ministries, claiming that Article 6, paragraphs 1 and 2 of the Law on Ministers and Ministries were in contravention of Article V, item 4 of the Constitution of Bosnia and Herzegovina, since item 1 uses the term Co-chair appointed by the Presidency of Bosnia and Herzegovina, and item 2 starts with the function of Vice-chair, which is not foreseen by the Constitution of Bosnia and Herzegovina, and that it is evident that the Law is not consistent with the Constitution of Bosnia and Herzegovina, challenged all the provisions of the Law which define the Co-Chairs and the Vice-Chair of the Council of Ministers, and not only Article 6.

The provisions on the Co-Chairs and the Vice-Chair of the Council of Ministers are contained in Articles 3, 5, 6, 7, 9, 10, 11, 12, 13, 15, 19, 20, 21 item 3, and Articles 22, 24, 25, 26, 27, 28 and 29 of the contested law. Thus, it provides, inter alia, the following: in Article 3 – that the two Co-Chairs, the Vice-Chair and three Ministers (foreign affairs; civil affairs and communications; foreign trade and economic relations) constitute the members of the Council of Ministers of Bosnia and Herzegovina; in Article 5 – that the Council of Ministers is headed by the Chair, and that the Co-Chairs rotate in the position of the Chair in accordance with the Rules of Procedure; in Article 6 – that the Co-Chairs are appointed by the Presidency of Bosnia and Herzegovina, and the Vice-Chair, the Ministers and the Deputy Ministers are appointed by the Co-Chairs with the previously obtained opinion of the Presidency, and that all members of the Council of Ministers and deputy ministers assume their functions after they have been approved by the House of Representatives; in Article 20 – that decisions of the Council of Ministers come in effect when signed by the Co-Chairs and the Vice-Chair. Other provisions regulate in detail the functions of the Co-Chairs and the Vice-Chair of the Council of Ministers and, accordingly, of the Council of Ministers as a whole.

Article V.4 of the Constitution of Bosnia and Herzegovina defines the Council of Ministers of Bosnia and Herzegovina, which is composed of the Chair of the Council of Ministers and a certain number of ministers as may be appropriate, who are responsible for the implementation of the policy and the decisions of Bosnia and Herzegovina from within the competencies of the institutions of Bosnia and Herzegovina; the Presidency of Bosnia and Herzegovina appoints the Chair of the Council of Ministers of Bosnia and Herzegovina, who assumes the office upon the approval by the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina; the Chair of the Council of Ministers appoints the Minister of Foreign Affairs, the Minister of Foreign Trade and other ministers as may be appropriate (no more than two thirds of the ministers may be appointed from the territory of the Federation of Bosnia and Herzegovina), who assume the office upon the approval by the House of Representatives; also, the Chair appoints deputy ministers (who may not be from the same constituent people as their ministers), who assume the office upon the approval by the House of Representatives.

It follows from what has been stated above that the challenged provisions of the law defining the Co-Chairs and the Vice-Chair of the Council of Ministers are not in accordance with the Constitution of Bosnia and Herzegovina, since the Constitution clearly establishes the traditional function of a Prime Minister designate who also appoints the ministers according to Article V.4 of the Constitution of Bosnia and Herzegovina. Therefore, there is substantive unconstitutionality of the challenged legal provisions, and the Constitutional Court therefore decided as stated in the dispositive.

Article 56 paragraphs 2, 3 and 4 of the Constitutional Court’s Rules of Procedure provides that in a decision establishing the inconsistency under Article VI.3 (a) of the Constitution of Bosnia and Herzegovina, the Constitutional Court may grant the adopter of the act a period, not exceeding three months, within which it is to adapt the act accordingly. If the incompatibility was not eliminated within the set period, the Constitutional Court shall, in a decision, declare that the incompatible provisions cease to be valid. The incompatible provisions cease to be valid on the day on which the decision of the Constitutional Court on the cessation of application of the incompatible provisions was published in the “Official Gazette of Bosnia and Herzegovina”.

Taking into account the aforesaid provisions of the Constitutional Court’s Rules of Procedure, the Constitutional Court hereby sets a three-month time limit for the harmonization of the Law on Ministers and Ministries with the Constitution of Bosnia and Herzegovina, starting from the date of publication of this decision in the Official Gazette of Bosnia and Herzegovina.

Regarding the request to annul the confirmation of appointment of the Co-Chairs and the Vice-Chair of the Council of Ministers, the Constitutional Court finds that the confirmation of appointment was carried out by the decisions of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina, on the basis of the Constitution of Bosnia and Herzegovina and Article 6 of the Law on Ministers and Ministries.

In the context of this decision, whereby the Constitutional Court gave the Parliamentary Assembly of Bosnia and Herzegovina a three-month time limit to harmonize the challenged provisions of the Law on Ministers and Ministries with the Constitution of Bosnia and Herzegovina, there were no grounds for the Constitutional Court to annul the aforesaid decisions.

The Constitutional Court has not pronounced itself on the request by Mr. Mirko Banjac to abrogate all decisions and other acts of the Council of Ministers “from the day of the unlawful confirmation of appointment,” because that request was not instituted according to Article 14, paragraph 1 of the Constitutional Court’s Rules of Procedure. That provision provides that the request for institution of proceedings according to Article VI.3 (a) of the Constitution of Bosnia and Herzegovina has to contain the title of the disputed act, with the indication of the title and the issue of the official gazette in which it has been published, the provisions of the Constitution of Bosnia and Herzegovina which are deemed to have been violated, as well as assertions, facts and evidence on which the request is founded. Even in the latest submission of 24 February 1999, submitted upon the request of the Constitutional Court in accordance with Article 19 of the Constitutional Court’s Rules of Procedure, the applicant failed to eliminate the deficiency of his original request.

The Constitutional Court ruled in the following composition:

President of the Constitutional Court Prof. Dr. Kasim Begić,

Judges: Marko Arsović, Dr. Hans Danelius, Prof. Dr. Louis Favoreu, Prof. Dr. Joseph Marko, mag.iur. Zvonko Miljko, Azra Omeragić and Mirko Zovko.

U 1/99 14 August 1999 Neum

Prof. Dr. Kasim Begić President of the Constitutional Court of Bosnia and Herzegovina

The provisions of the Law on Ministers and Ministries establishing Co-Chairs and a Vice-Chair of the Council of Ministers are not in conformity with the Constitution of Bosnia and Herzegovina. The Constitution of Bosnia and Herzegovina defined, in a clear way, the function of a Prime Minister designate who also appoints the ministers according to Article V.4 of the Constitution of Bosnia and Herzegovina.

The Constitutional Court of Bosnia and Herzegovina, sitting at a session held on 28 January 2000, established that a clerical error was made in its Decision no. U-1/99 of 14 August 1999 ("Official Gazette of Bosnia and Herzegovina", no. 16/99) and it, pursuant to Article 70 of its Rules of Procedure ("Official Gazette of Bosnia and Herzegovina", nos. 2/97, 16/99, 20/99 and 24/99), makes the following

CORRECTION

of its Decision no. U 1/99 of 14 August 1999.

I

As regards the first sentence of the operative part of the aforementioned Decision, the following corrections shall be made: the wording "paragraph 1" shall be added after the wording "Article 3", the wording "paragraph 2" shall be added after the number "7", the wording "paragraph 2" shall be added after the number "19", the wording "paragraph 1" shall be added after the number "28" and the wording "paragraphs 3 and 4" shall be added after the number "29".

ALTERNATIVELY

The first sentence of the operative part of the aforementioned Decision shall read as follows: It is hereby established that Article 3 paragraph 1, Articles 5 and 6, Article 7 paragraph 2, Articles 9, 10, 11, 12, 13 and 15, Article 19 paragraph 2, Article 20, Article 21 paragraph 3, Articles 22, 23, 24, 25, 26 and 27, Article 28 paragraph 1 and Article 29 paragraphs 3 and 4 of the Law on the Council of Ministers and Ministries of Bosnia and Herzegovina ("Official Gazette of Bosnia and Herzegovina", no. 4/97) are not in conformity with the Constitution of Bosnia and Herzegovina.

II

This correction shall be published in the Official Gazette of Bosnia and Herzegovina, the Official Gazette of the Federation of Bosnia and Herzegovina and the Official Gazette of the Republika Srpska.

U 1/99 Sarajevo, 28 January 2000

Biljana Potparic Acting Secretary of the Constitutional Court of Bosnia and Herzegovina