The Main Features of the Constitutional Organization of Bosnia and Herzegovina. Jasenka Ferizović

Transcription

1 The Main Features of the Constitutional Organization of Bosnia and Herzegovina Jasenka Ferizović

2 The main features of the constitutional organization of Bosnia and Herzegovina 1. Introduction The structure of post-war Bosnia and Herzegovina is unique and extremely complex. Its multilayered architecture, as provided for in the three constitutions that operate on its territory, reflects the circumstances of the state s birth in March-April 1992, its effective demise immediately afterwards, and the painful, tentative rebirth engineered at Dayton. 1 This working paper examines only the main features of B&H constitutional organization. 2. The Dayton Peace Agreement Efforts of international community to bring to an end the war that breached upon disintegration of Socialist Federative Republic of Yugoslavia (SFRY) in 1992, finally led to signing of the General Framework Agreement for Peace in Bosnia and Herzegovina (GFAP). 2 The GFAP, also known as the Dayton Peace Agreement (DPA), is complex construction which grew out of different peace plans negotiated from 1991 onwards. It was first initialed in Dayton (Ohio) on November 21, 1995, and subsequently signed in Paris on December 14, The terse general text of the DPA which regulates military arrangements between the parties, demarcation lines, constitutional arrangements for Bosnia and Herzegovina as well as the establishment of new institutions, is supported by 11 detailed Annexes which spell out in greater depth the parties' commitments. 3 The present political division of Bosnia and Herzegovina and its structure of government were agreed upon as part of the Constitution that makes up Annex 4 of the DPA. Participation of 1 Sumantra Bose, Bosnia after Dayton: Nationalist Partition and International Intervention (London: Hurst, 2002), 60 2 Available at: 3 Annex 1A - Military Aspects of the Peace Settlement & Appendices to Annex 1A; Annex 1B Regional stabilization; Annex 2 - Inter Entity Boundary Line and related Issues; Annex 3 Election; Annex 4 Constitution; Annex 5 Arbitration; Annex 6 Human Rights; Annex 7 Refugees and Displaced Persons; Annex 8 Commission to Preserve National Monuments; Annex 9 Establishment of Bosnia and Herzegovina Public Corporations; Annex 10 Civilian Implementation of Peace Settlement; Annex 11 International Police Task Force 1

3 constituent peoples in determining contents of the Constitution was more fiction, stated with the aim of legitimizing the Constitution, 4 than reality Bosnia and Herzegovina, as symbolic construction of international community still lacks emotional support of its population. 5 The text of the Constitution of Bosnia and Herzegovina largely came into being during various peace negotiations, and its final version is a result of negotiations held behind the closed doors in Wright Patterson Air Force Base near Dayton. 3. The constitutional organization of Bosnia and Herzegovina The conception of the state has always been one of the most disputable issues, since it determines degree of centralization and degree of autonomy of entities. The Constitution itself does not contain common definitions such as federation, union of states or confederation it is rather limited to couple of basic coordinates and to shaping of relations between the state and entities in concreto. 6 According to Article I (3) of the Constitution, Bosnia and Herzegovina shall consist of the two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska. 7 This kind of state organization emerged as a consequence of Republika Srpska s opposition to inclusion according to cantonal model established by previously signed Washington Agreement. Namely, the Washington Agreement which was signed in March 1994 gave birth to Federation of Bosnia and Herzegovina consisting of ten Cantons. The Federation of Bosnia and Herzegovina was designed as continuation of the Republic of Bosnia and Herzegovina (RB&H), which meant that parts of the country that haven t been under the control of the institutions of RB&H were to be attached to the Federation within a final peace settlement for the whole territory of the RB&H. Since the Republika Srpska did not consent to becoming an additional canton or to be divided into several cantons and since division of Federation into two parts wasn t desirable solution, the already existing Federation was 4 The Preamble of the Constitution: Bosniaks, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows 5 Steiner Christian et al., Constitution of Bosnia and Herzegovina (Sarajevo: Konrad Adenauer Stiftung, 2010), 25 6 Ibidem, The Federation of Bosnia and Herzegovina consists of 10 administrative units called cantons which are further divided into 79 municipalities. There are also 5 administrative units with the status of the city in the Federation of Bosnia and Herzegovina. The Republika Srpska comprises 62 municipalities and 2 cities. Some municipalities in both the Federation and the Republika Srpska consist of local self-government units called local communities. 2

4 declared as the one part of the country and the Republika Srpska joined it as another one. 8 Another issue that the contracting parties to the DPA couldn t settle upon was the status of the land corridor between the eastern and the western part of the Republika Srpska. In order to avoid complete failure of the peace settlement, the final decision on Brčko was left to be adopted through arbitration. 9 The arbitration process was finalized in March 1999 resulting in a neutral district under its own sovereign administration, i.e., under the direct supervision of Bosnia and Herzegovina. (Figure 1) Bosnia and Herzegovina Entities Brčko District Federation of Bosnia and Herzegovina Republika Srpska 10 Cantons 62 Municipalities 2 Cities 79 Municipalities 5 Cities Local Communities Local Communities Figure 1 8 Steiner Christian et al., Constitution, Article V (1) of Annex 2 to the GFAP 3

5 4. Distribution of responsibilities according to the Constitution of Bosnia and Herzegovina Annex 4 of the DPA defined both responsibilities of the state and those of entities. Pursuant to key provision contained in Article III, it falls within responsibilities of the institutions of Bosnia and Herzegovina to deal with matters related to foreign policy; foreign trade policy; customs policy; monetary policy; financing of the B&H institutions and international obligations of Bosnia and Herzegovina; immigration, refugee, and asylum policy and regulation; international and inter-entity criminal law enforcement including relations with Interpol; establishment and operation of common and international communications facilities; regulation of inter-entity transportation and, finally, air traffic control. According to other provisions of the Constitution, the State institutions are also responsible for regulation of citizenship, 10 enactment of the Election law, 11 regulation of other matters assigned to it by mutual agreement of the Entities, 12 over some aspects of organization of the constitutional judiciary, 13 as well as over regulation of some military issues. 14 Besides these responsibilities which are not explicitly mentioned in Article III (1), Article III (5) prescribes a possibility of establishing additional responsibilities of the State. 15 Provision of Article III (5) has been clear source of flexibility for B&H constitutional law and, consequently, central point of many discussions since the entry into force of the Constitution. Many reforms have indeed been based on Article III (5) - the establishment of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (HJPC), the Indirect Taxation Authority (ITA) or the implementation of reforms in the field of defense. The responsibilities of the State stipulated under Article III (1)(a) and III (1)(b) of the Constitution are not exclusive by nature. For example, the Entities are entitled to establish special parallel relationships with neighboring states consistent with the sovereignty and 10 The Constitution, Article I (7) 11 The Constitution, Article IV (2) and V (1) 12 The Constitution, Article IV (4) (e) and V (3) (i) 13 The Constitution, Article VI 14 The Constitution, Article V (5) (a) 15 The Constitution, Article III (5) (a): Bosnia and Herzegovina shall assume responsibility for such other matters as are agreed by the Entities; are provided for in Annexes 5 through 8 to the General Framework Agreement; or are necessary to preserve the sovereignty, territorial integrity, political independence, and international personality of Bosnia and Herzegovina, in accordance with the division of responsibilities between the institutions of Bosnia and Herzegovina. Additional institutions may be established as necessary to carry out such responsibilities. 4

6 territorial integrity of Bosnia and Herzegovina. 16 They also may enter into agreements with states and international organizations, but only with the consent of the Parliamentary Assembly. 17 Concurrent responsibilities also exist in the field of public security if it relates to the protection of State borders. In addition to concurrent responsibilities, pursuant to Article III (3)(a), entities have been given right to establish all governmental functions and powers not explicitly assigned to the institutions of Bosnia and Herzegovina, which includes fields such as inter alia criminal matters, property law, finance, citizenship, defense, police as well as cooperation with other states. 5. Division of powers in Bosnia and Herzegovina In accordance with the principle of division of powers, political power at the state level, as well as at the entity level, has been divided among an executive, a legislature, and a judiciary. (Figure 2) The legislative organ of the state consists of bicameral Parliamentary Assembly. All legislation requires the approval of both chambers for adoption. The first chamber, the House of Peoples has fifteen members, ten elected from the Federation and five elected from the Republika Srpska. The delegates from the Federation are selected by the House of Peoples of the Federation while the delegates from the Republika Srpska are selected by the Republika Srpska National Assembly. The five deputies from Republika Srpska must all be Serbs, and ten positions for deputies coming from Federation have to be equally divided among Bosniaks and Croats. Several legal problems have been identified regarding appointment and makeup of the House of Peoples. Namely, citizens of Bosnia and Herzegovina who are not Serbs, Croats, or Bosniaks have no right to stand as a candidate for election to the House of Peoples. Similarly, even Serbs, Croats and Bosniaks who live in the wrong entity are denied the right to stand as candidates. As a result, the corresponding rights of voters are also restricted because they can only vote for candidates of a specific ethnicity. 18 Similar problem emerges when it comes to rights of Others to stand as candidates for the B&H Presidency and the House of Peoples of the 16 The Constitution, Article III (2) (a) 17 The Constitution, Article III (2) (d) 18 Steiner et al., Constitution, 622 5

7 Parliamentary Assembly. With respect to this particular issue, the Grand Chamber of European Court for Human Rights (ECtHR) deciding upon application of two citizens of Bosnia and Herzegovina of Roma and Jewish ethnicities, concluded that, given the progress that the State has made since signing the DPA, it is no longer justified to entirely deprive the members of the so-called Others of the right to be elected to this legislative house as well as to B&H Presidency. 19 The House of Representatives has forty-two members who are directly elected. Two-thirds of them (28 members) must be elected from the territory of the Federation and one third (14 members) from the Republika Srpska. Responsibilities of the Parliamentary Assembly are set forth in Article IV (4) (a-e) of the Constitution. Pursuant to the afore mentioned Article, the Parliamentary Assembly has broad powers to enact legislation necessary to implement the enumerated powers granted to State institutions in Article III (1) of the B&H Constitution, to decide upon the sources and amounts of revenues for the operations of the institutions of the institutions of Bosnia and Herzegovina and the international obligations of Bosnia and Herzegovina, to determine the budget for all state bodies, 20 to decide whether to consent to the ratification of treaties and to decide upon such other matters as are necessary to carry out its duties or as are assigned to it by mutual agreement of the Entities. Decisions are taken in both chambers by a majority of those present and voting, but decision thus taken may be declared to be destructive of a vital interest of the Bosniak, Croat or Serb people by a majority of, as appropriate, the Bosniak, Croat or Serb Delegates to the House of Peoples. The Constitution does not contain a catalogue of the vital national interests or a definition of the notion vital national interest. The executive branch of Bosnia and Herzegovina consists of the Presidency and the Council of Ministers. Under the provision set forth in Article V of the Constitution, the Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniak and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska. The Croat and Bosniak members of the Presidency are 19 ECtHR, Sejdić and Finci v. Bosnia and Herzegovina, Applications nos /06 and 34836/06 20 In decision rendered in case U6/06, Constiutional Court held that the power to make revenue and budget decisions for State institutions did not include the power to establish the salaries of the judges of the B&H Constitutional Court because such power within the hands of parliament might jeopardize the independence of the judiciary. (Steiner et al., Constitution, 635) 6

8 elected from the territory of the Federation and the Serb member of the Presidency is elected by the citizens of the Republika Srpska from among candidates who are RS citizens. Hence, like other State institutions in B&H, it is designed to divide power between the three constituent peoples. Since each of the three members of the Presidency is a representative of one of the three constituent peoples, members of national minorities, constitutionally defined as Others, are ineligible to be elected to the Presidency. Pursuant to Election Law of Bosnia and Herzegovina 21 the chairmanship of the Presidency rotates every eight months between its members. Powers of the Presidency are listed in the third paragraph of Article V of the Constitution, and they could be divided into two categories those that require a decision of the Presidency 22 and those that involve actions of a lesser legal status than a decision, namely, actions such as reporting, coordinating, and proposing. 23 The importance of distinguishing between these two categories additionally supervenes from the fact that the powers of decision are subject to the vital interest clause while the additional powers are not subject to the vital interest provisions and do not even fall under the constitutional obligation for the Presidency to endeavor to achieve consensus for action. 24 In addition to responsibilities enumerated in Article V (3) of the Constitution, 25 the Presidency also has constitutional powers granted by paragraphs 4 and 5 of Article V and by other articles of the Constitution. Some of those powers include dissolving the House of Peoples, appointment of 21 Election Law of Bosnia and Herzegovina, Article The Constitution, Article V (3) (a-e) 23 The Constitution, Article V (3) (e-i) 24 Steiner et al., Constitution, The Presidency shall have responsibility for: a. Conducting the foreign policy of Bosnia and Herzegovina. b. Appointing ambassadors and other international representatives of Bosnia and Herzegovina, no more than twothirds of whom may be selected from the territory of the Federation. c. Representing Bosnia and Herzegovina in international and European organizations and institutions and seeking membership in such organizations and institutions of which Bosnia and Herzegovina is not a member. d. Negotiating, denouncing, and, with the consent of the Parliamentary Assembly, ratifying treaties of Bosnia and Herzegovina. e. Executing decisions of the Parliamentary Assembly. f. Proposing, upon the recommendation of the Council of Ministers, an annual budget to the Parliamentary Assembly. g. Reporting as requested, but not less than annually, to the Parliamentary Assembly on expenditures by the Presidency. h. Coordinating as necessary with international and nongovernmental organizations in Bosnia and Herzegovina. i. Performing such other functions as may be necessary to carry out its duties, as may be assigned to it by the Parliamentary Assembly, or as may be agreed by the Entities. 7

9 members of the governing board of the Central Bank, appointment of the Commission on National Monuments, and facilitation of inter-entity coordination. 26 The Council of Ministers of Bosnia and Herzegovina comprises the Chairman and the following ministers: Minister of Foreign Affairs, Minister of Foreign Trade and Economic Relations, Minister of Finance and Treasury, Minister of Communications and Transport, Minister of Civil Affairs, Minister of Human Rights and Refugees, Minister of Justice, Minister of Security and Minister of Defense. The number of ministerial portfolios has evolved in parallel with the responsibilities of State institutions. The term of office of the Council of Ministries coincides with that of the Parliamentary Assembly of Bosnia and Herzegovina. Constitutional provision related to the Council of Ministers is relatively short and it regulates matters pertaining to the nomination, election and composition of the Council of Ministers as well as its responsibilities. In addition to those provisions, consideration should be given to the various laws that have regulated the Council of Ministers since the signing of the GFAP. 27 The Presidency of Bosnia and Herzegovina initiates the process of nomination of the Chair of the Council of Ministers. The Chair nominates a Foreign Minister, a Minister of Foreign Trade and other Ministers as may be appropriate, as well as Deputy Ministers. Pursuant to Article V (4)(b) of the Constitution, the Deputy Ministers are not members of the Council of Ministers. Initially, Deputy Ministers were used to ensure equal representation of constituent peoples in every single ministry. Those positions ceased to exist in 2002, but, having in mind political sensitivity of transferring competences related to defense to the state level, an exception has been made regarding the Minister of Defense who still has two deputies. When nominating ministers, the Chair has to ensure that no more than two-thirds of all the Ministers are appointed from the territory of the Federation of Bosnia and Herzegovina. 28 The final step in the process of election of the Council of Ministries is the vote in the House of Representatives the nomination of the Chair of the Council of Ministers by the Presidency of Bosnia and Herzegovina, as well as the nomination of 26 Steiner et al., Constitution, The Law on the Council of Ministers and Ministries of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina, No. 4/97; The Law on the Council of Ministers and Ministries of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina, No. 11/00; The Law on the Council of Ministers and Ministries of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina, No. 30/03 (amended OG No. 42/03, No. 81/06, No. 76/07, 94/07) 28 The Constitution, Article V (4) (b) 8

10 the Ministers and Deputy Ministers by the Chair of the Council of Ministers, needs to be approved by a vote in this house of state legislative body. The responsibilities of the Council of Ministries have been described as carrying out the policies and decisions of Bosnia and Herzegovina in the fields referred to in Article III (1), (4) and (5) and reporting to the Parliamentary Assembly. 29 The State judiciary comprises the Constitutional Court and the Court of Bosnia and Herzegovina. Legal framework for the organization and the functioning of the Constitutional Court of Bosnia and Herzegovina is set forth in Article VI of the Constitution. The Constitutional Court is composed of nine judges, six of which are selected by the respective assemblies or parliaments of the entities. 30 The remaining three judges are appointed by the President of the European Court of Human Rights after consultation with the Presidency of Bosnia and Herzegovina. The position of judge is deemed incompatible with membership in a political party or political organization in Bosnia and Herzegovina, with membership in a legislative, executive or other judicial authority either in Bosnia and Herzegovina or in the entities thereof, as well as with any other position that could affect the impartiality of the judge. The jurisdiction of the Constitutional Court stipulated in the Article VI (3) of the Constitution and encompasses resolving federal disputes and disputes between State authorities, appellate jurisdiction (under the Constitution of Bosnia and Herzegovina and European Convention on Human Rights (ECHR)) and control of constitutionality. 31 Additionally, the Constitutional Court also resolves blockades of the Parliamentary Assembly, which occur if the Joint Commission of the House of Peoples fails to reach compromise regarding decision taken by the House of Representatives which was, by the majority of representatives of one constituent people in the House of Peoples, declared to be destructive of vital interest 32 of that people The Constitution, Article V (4) (a) 30 Four members are selected by the House of Representatives of the Federation of Bosnia and Herzegovina, two members are selected by the National Assembly of the Republika Srpska. 31 Steiner et al., Constitution, The Constitution of Bosnia and Herzegovina does not contain definition of vital interest. In the view of the Constitutional Court, this term encompass certain principles without which a society with the differences protected under the Constitution could not finction efficiently. (Steiner et al., Constitution, 876) 33 The Constitution of Bosnia and Herzegovina, Article IV (3) (f) 9

11 The Court of Bosnia and Herzegovina was established by the Law on the Court of Bosnia and Herzegovina which was initially imposed by the decision of the High Representative, and subsequently adopted by the Parliamentary Assembly of Bosnia and Herzegovina at the session of the House of Peoples held on 25 June 2002 as well as at the session of the House of Representatives held on 3 July The Court of Bosnia and Herzegovina comprises the Plenum and three divisions criminal, administrative and appellate. Jurisdiction of the Court consists of criminal, administrative and appellate jurisdiction. Division of powers in Bosnia and Herzegovina Legislature Executive Judiciary Parliamentary Assembly Presidency Council of Ministers Constitutional Court Court of Bosnia and Herzegovina House of Representatives House of Peoples Chair of Council of Ministers Ministers Figure 2 6. Division of powers in the Federation of Bosnia and Herzegovina The Federation of Bosnia and Herzegovina was created by the United States government in Washington, DC in March 1994, in order to end bitter Muslim-Croat hostilities. The Constitution of the Federation of Bosnia and Herzegovina was adopted by the Constitutional Assembly of the Federation of Bosnia and Herzegovina at the session held on June 24, Pursuant to the 10

12 Article 1, the Federation of Bosnia and Herzegovina is one of the two entities composing the State of Bosnia and Herzegovina, and has all powers, competences and responsibilities which do not, according to the Constitution of Bosnia and Herzegovina, fall within the exclusive competences of the institutions of Bosnia and Herzegovina. The fact that the Federation is granted all residual powers not explicitly assigned to B&H institutions suggests that, theoretically, the Federation is a genuinely autonomous entity of Bosnia and Herzegovina. 34 However, its internal structure is itself radically decentralized. Since the Federation consists of ten federal units called cantons, all those powers, responsibilities and competences have been distributed between them. Thus, the Federation has, among other issues, exclusive responsibilities for concluding military agreements pursuant to the Constitution of Bosnia and Herzegovina; regulation of citizenship of the Federation; economic policy, including planning and reconstruction, and land use policy on the federal level; combating terrorism, intercantonal crimes, drug trafficking and organized crime; energy policy including inter cantonal distribution matters, and providing and maintaining the related infrastructure, etc. 35 Pursuant to Article 4 of the third chapter of the Constitution, the cantons shall have all responsibilities not explicitly assigned to the Federation, particularly those related to establishing and controlling police forces; education policy making, including decisions concerning the regulation and provision of education; cultural policy making; housing policy making (including decisions concerning the regulation and provision of housing); implementation of social welfare policy and providing social welfare services, etc. In addition to exclusive responsibilities of the Federation and cantons, the federal Constitution also enumerates their shared responsibilities which include guaranteeing and enforcing human rights, health, environmental policy, infrastructure for communications and transport (according to the Constitution of Bosnia and Herzegovina), social welfare policy, tourism, use of natural resources, etc. 36 These responsibilities can be exercised jointly or separately, or by the cantons as coordinated by the federal Government Bose, Bosnia after Dayton, The Constitution of the Federation of Bosnia and Herzegovina, Chapter III, Article 1 36 The Constitution of the Federation of Bosnia and Herzegovina, Chapter III, Article 2 37 The Constitution of the Federation of Bosnia and Herzegovina, Chapter III, Article 3 11

13 The legislative authority in the Federation is exercised by the Parliament of the Federation of Bosnia and Herzegovina which consists of the House of Representatives and the House of Peoples. The House of Representatives comprises 98 delegates whose term shall be four years, and who shall be elected democratically by eligible voters in a direct, Federation wide election. The House of Peoples is composed on parity basis, so that each constituent people could have the same number of representatives. This house of the federal legislative body consists of 58 delegates 17 delegates from among each of the constituent peoples and 7 delegates from among the others. 38 Delegates to the House of Peoples are being elected by the Cantonal Assemblies from among their representatives in proportion to the ethnic structure of the population. Pursuant to Article 20, the Parliament has, in addition to other powers specified in the Constitution, following responsibilities: election of the President of the Federation, approving by majority votes the Cabinet, enacting laws necessary to exercise responsibilities allocated to the Federal Government, adopting the budget of the Federation and adopting legislation to levy taxes and secure necessary financing, etc. The executive powers in the Federation of Bosnia and Herzegovina are distributed among the President (and two Vice-Presidents) and the Government. The President and Vice-Presidents have to be nominated by at least one third of the delegates of respective Bosniak, Croat and Serb caucuses in the House of Peoples and their election requires joint approval of the list of three nominees by majority vote in the House of Representatives and then by majority votes in the House of Peoples, including the majority of each constituent people's caucus. According to the constitutional provisions, the President is responsible for nomination of the Government, heads of diplomatic missions, officers of the military, and judges of the Constitutional Court of the Federation upon proposal of candidates by the High Judicial and Prosecutorial Council, signing decisions of the legislative body upon their enactment, signing and ratifying international agreements on behalf of the Federation, granting reprieves and pardons for offenses against laws of the Federation, except for war crimes, crimes against humanity, and genocide, etc The Constitution of the Federation of Bosnia and Herzegovina, Chapter IV, Article 6 39 The Constitution of the Federation of Bosnia and Herzegovina, Chapter, Article 7 12

14 The Government of the Federation comprises the Prime Minister and 16 ministers. 40 The President of the Federation, in agreement with both Vice-Presidents and upon consultations with the Prime Minister or a nominee for that office, appoints the Government of the Federation. The appointment of the Government has to be confirmed in the House of Representatives. Responsibilities of the Prime Minister encompass execution and enforcement of the federal laws and policies, making proposals and recommendations concerning legislation, and preparing budgetary proposals. The judiciary of the Federation of Bosnia and Herzegovina consists of the Constitutional Court of the Federation, the Supreme Court of the Federation, cantonal and municipal courts. The constitutional Court is composed of nine judges, at least two of whom come from all three constituent people each, and one from the group of the Others. The Constitutional Court resolves disputes between various levels of authorities, decides constitutional questions presented by the Supreme Court or cantonal courts, determines whether any law that has been adopted by a competent authority of the canton, city or municipality is in accord with the Constitution of the Federation, etc. As already mentioned, the judges of the Constitutional Court are nominated by the President of the Federation (with the concurrence of the Vice Presidents) and their appointment requires an approval of majority of the members of House of Peoples. The Supreme Court is the highest court of appeals in the Federation of Bosnia and Herzegovina. According to the Law on Courts of the Federation of Bosnia and Herzegovina, the jurisdiction of the Supreme Court comprises rendering decisions on ordinary legal remedies against rulings of cantonal courts (when prescribed by the law), rendering decisions on extraordinary legal remedies 41 against final decisions of the courts, rendering decisions on legal remedies against 40 The Government shall be composed of 8 Bosniak, 5 Croat and 3 Serb ministers, while one candidate may be nominated from among the category of Other by the Prime Minister. 41 According to both civil and criminal procedure laws that are currently in force in B&H, legal remedies can be divided into two categories ordinary legal remedies and extraordinary legal remedies. Ordinary legal remedy is an appeal which can be filed not only against judgment, but also against other court decisions rendered during criminal or civil proceedings. On the other hand, extraordinary legal remedies can be filed against final court decision only in some exceptional cases, under conditions prescribed by law. Most frequently used extraordinary legal remedy in both criminal and civil proceedings is reopening of criminal/civil proceedings (retrial). Criminal/civil proceedings may be reopened if, for instance, a decision of the court was founded on a perjury of a witness or expert witness; or if a decision of the court was a result of a criminal offence committed by a judge, a lay judge, a 13

15 decisions of its own panels, resolving conflicts of jurisdiction between cantonal and municipal courts from different cantons, rendering decisions on transfer of territorial jurisdiction from one to another court, when prescribed by the law, etc. The President of the Supreme Court is also responsible for the management of the Judicial Police. Judges of the Supreme Court, apart from reserve judges, are appointed for life by the High Judicial and Prosecutorial Council in accordance with the law. (Figure 3) Division of powers in the Federation of Bosnia and Herzegovina Legislature Executive Judiciary Parliament of the FB&H President (and 2 Vice Presidents) Government Constitutional Court Supreme Court House of Representatives House of Peoples Prime Minister Ministers Figure 3 The Constitution of the Federation of Bosnia and Herzegovina has also arranged organization of cantons. Pursuant to constitutional provisions, each canton has lawmaking body consisting of one house whose members are elected democratically by the eligible voters in a direct, legal representative or an attorney of a party, an opposing party or a third party; or if the party has learned about new facts or has been given or has gained a possibility to have recourse to new evidence on the basis of which a more favorable decision could have been passed for the party had such facts or evidence been used in the previous proceedings, etc. Apart from retrial, civil procedure codes prescribe a possibility of filing another extraordinary legal remedy called review. Motion for review can be filed against second instance judgment on the grounds of substantial violation of specific civil procedure laws, incorrect application of substantive law or exceeding of the claim, if such infraction was inflicted in the course of second instance proceedings. 14

16 canton wide election. The cantonal legislature called the Cantonal Assembly is responsible for preparing and approving the cantonal constitution, enacting other legislation necessary to carry out the canton s responsibilities as well as approving the budget of the canton and enacting legislation levy taxes and otherwise secure the necessary financing. The cantonal executive is conferred to the Cantonal Government, whose responsibilities include execution and enforcement of cantonal policies and laws, preparing budgetary proposals for the approval of the Cantonal Assembly, ensuring the cooperation of the Cantonal Government with the Ombudsmen, etc. The Cantonal Government consists of the Prime Minister and Ministers. The Prime Minister is nominated by the Chairman of the Cantonal Legislature, upon consultations with the Vice-Chairman and the Prime Minister candidate proposes ministers. The Government needs to be approved by the Cantonal Assembly. Pursuant to the Article 11 of the fifth chapter of the Federal Constitution, cantonal judiciary comprises cantonal courts which have both appellate jurisdiction over the decisions of municipal courts and original jurisdiction over matters that do not fall within jurisdiction of other courts. The High judicial and Prosecutorial Council appoints judges in accordance with the law. (Figure 4) Division of powers in Cantons Legislature Executive Judiciary Cantonal Assembly Cantonal Government Cantonal Court Prime Minister Ministers Figure 4 15

17 The municipalities are the smallest administrative units in Bosnia and Herzegovina. Each canton consists of several municipalities. There are 79 municipalities in the Federation of Bosnia and Herzegovina. Municipalities are units of local self-government whose responsibilities are not explicitly enumerated in the Constitution of the Federation of Bosnia and Herzegovina. Instead, Article 2 of the Chapter VI of the Constitution reads that each municipality shall exercise selfrule on local matters. 42 In addition to that, cantons may also delegate their responsibilities to municipalities, especially those concerning education, culture, tourism, local business and charitable activities. 43 Powers of municipal authorities are distributed between the legislature, executive and judiciary. (Figure 5) Legislative authority of the municipality is the Municipal Governing Councils consisting of municipal councilors who are elected democratically by the eligible voters in a direct, municipality wide election. The Municipal Governing Council prepares and approves Municipal Statute, approves the budget of the municipality, enacts other regulations and ordinances necessary to carry out the municipality's responsibilities, etc. The Mayor of the Municipality is the municipal executive, and he (or she) is responsible for appointing and removing municipal officials, executing and enforcing municipal policies, ordinances and regulations, as well as any responsibilities assigned to the Municipality by the Cantonal and Federal Governments, reporting on the implementation of municipal policies and activities to the Governing Council and the public, etc. According to the Constitution, municipal courts may be established for the territory of one or more municipalities and they have jurisdiction over all civil and criminal matters, except in the case the original jurisdiction is assigned to another court by this or the Cantonal Constitution or by a law of the Federation or of the Canton. 44 They are established by the cantonal legislation and funded by cantons. The judges of municipal courts selected, appointed, disciplined and removed by the High Judicial and Prosecutorial Council of the Federation in accordance with the law. 42 The Constitution of the Federation of Bosnia and Herzegovina, Chapter VI, Article 2 43 The Constitution of the Federation of Bosnia and Herzegovina, Chapter V, Article 2 44 The Constitution of the Federation of Bosnia and Herzegovina, Chapter VI, Article 7 16

18 Division of powers in Municipalities of the Federation of B&H Legislature Executive Judiciary Municipal Governing Council Mayor of the Municipality Municipal Courts Figure 5 The Constitution provides for a possibility of forming another sort of local government and selfgovernment units for the areas of two or more municipalities which are territorially linked by the everyday needs of citizens. This administrative unit called city is responsible for finances and tax policy, joint infrastructure, urban planning, public transport, securing revenues by taxation, borrowing and other means and for other responsibilities assigned to the city by the canton or municipalities. The city has City council consisting of an equal number of councilors from each municipality and the City mayor. The City council prepares and approves the statute of the city, elects the Mayor, approves the city budget and enacts regulations necessary to exercise transferred authorities and carry out other responsibilities specified in the statute, while the Mayor s responsibilities encompass appointing and removing city officials, executing and enforcing city policy and city regulations, reporting on the implementation of city policy to the city council and the public, etc. There are currently 2 cities in the Federation Mostar and Sarajevo. 17

19 7. Division of powers in the Republika Srpska The Republika Srpska is smaller B&H entity. Unlike the institutional frameworks of Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina that heavily borrow from the confederal model of the last two decades of Titoist Yugoslavia, the Constitution of the Republika Srpska is fundamentally different. As opposed to constitutions of Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina which are written in the style unmistakably of Western provenance, the style of Republika Srpska s Constitution is pedantic and repetitive, full of didactic statements and vacuous clauses, the trademark signature of intellectual socialized by and under state-socialist regime. 45 Pursuant to its Constitution, 46 all state functions and powers, except those which were by the Constitution of Bosnia and Herzegovina explicitly assigned to its institutions, shall belong to the Republika Srpska. The government is organized according to the principle of the division of powers the constitutional and legislative powers are being exercised by the National Assembly and the Council of Peoples, executive power is vested in the Government, the Republic is represented and its national unity symbolized by the President of the Republika Srpska, judicial power belongs to the courts, while the Constitutional court has competences related to protection of constitutionality and legality. 47 (Figure 6) The responsibilities of the Republika Srpska are enumerated in Article 68, and they comprise, among other issues, ensuring integrity, constitutional order and territorial unity of the Republika Srpska, implementation and protection of human rights and freedoms, regulation of banking and tax system, environmental protection, public information system, economic relations with foreign countries (if they have not been transferred to institutions of Bosnia and Herzegovina), etc. The lawmaking body of the Republika Srpska consists of the National Assembly and the Council of Peoples. Laws and other ordinances concerning issues of vital national interest of any of the constituent peoples can enter into force only upon adoption in the Council of Peoples. The National Assembly is responsible for making decisions on amending the Constitution, enacting laws and other regulations, adopting budget, electing delegates from the Republika Srpska to 45 Bose, Bosnia after Dayton, The Constitution of Republika Srpska, Article 3 47 The Constitution of Republika Srpska, Article 69 18

20 the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, determining the territorial organization of the Republika Srpska, granting amnesty, exerting control over the work of the Government and other bodies responsible to it, electing, appointing and dismissing the officials and carrying out other activities in accordance with the Constitution and law. The National Assembly has 83 deputies elected for term of four years. The composition of the Council of Peoples is based on parity so that each constituent people has the same number of representatives. Thus, it consists of 8 members from each of three constituent peoples and two members from the category of Others. Members of Council of Peoples are elected by respective caucuses in the National Assembly. According to constitutional provisions, the President of the Republika Srpska represents the Republic, proposes to the National Assembly a candidate for the Prime Minister, proposes to the National Assembly candidates for the president and judges of the Constitutional Court, grants pardons, confers decorations and awards specified by law, forms advisory bodies and expert agencies for performing tasks falling within his responsibilities, etc. The President of the Republika Srpska has two Vice-Presidents who are responsible for assisting the President in performing his duties. The President and the Vice-Presidents of the Republika Srpska are elected democratically by eligible voters in a direct, Republika Srpska wide election. The advisory body of the highest constitutional institutions in the Republika Srpska is the Senate. The Senate consists of 55 members who are elected by the President of the Republika Srpska and it is responsible for discussing issues of particular importance for the political, national, economic and cultural development of the Republika Srpska, and for forwarding its opinion to the highest constitutional institutions concerning the issues falling within their competence. The President of the Republika Srpska convenes and chairs the sessions of the Senate. The Government of the Republika Srpska consists of Prime Minister, Deputy Prime Minister and ministers. The Government is elected if the majority of the total number of deputies of the National Assembly has voted for it. The responsibilities of the Government comprise proposing laws and other regulations, ensuring the implementation and enforcement of the laws, other regulations and general enactments, defining principles of the internal organization of the 19

21 ministries and other administrative bodies and organizations of the Republika Srpska, appointing and recalling officials at the ministries, other bodies and administrative organizations, expressing its opinion on drafts of laws, other regulations and general enactments submitted to the National Assembly by another proposer, etc. The court system in the Republika Srpska comprises the Constitutional court, the Supreme Court, 19 basic courts, 5 district courts, 5 district commercial courts and the High commercial court. The status of the Constitutional court is regulated by the Constitution of the Republika Srpska. Pursuant to constitutional provisions, the Constitutional Court consists of 9 judges elected for the period of eight years. Its constitutional powers encompass making decisions on conformity of laws and other regulation with the Constitution, making decisions on the compliance of laws, other regulations and enactment of the National Assembly with the provisions of the Constitution on the protection of vital interests of the constituent peoples, deciding on conflict of jurisdictions between bodies of legislative, executive and judicial branch as well as on conflict of jurisdiction between agencies of the Republic, city and municipality, etc. Within the Constitutional court of the Republika Srpska exists the Panel for the protection of vital interests composed of seven judges. The National Assembly of the Republika Srpska elects judges of the Constitutional court. The jurisdiction of other courts is regulated by the Law on Courts in the Republika Srpska The Law on Courts in the Republika Srpska (Official Gazette of the Republika Srpska, No. 111/04 (amended OG No. 109/05, 37/06, 119/08) 20

22 Division of powers in the Republika Srpska Legislature Executive Judiciary National Assembly Council of Peoples Goverment President Constitutional Court Supreme Court High Commercial Court Prime Minister Ministers District Courts Commercial Courts Figure 6 Unlike the Federation of Bosnia and Herzegovina, the Republika Srpska is not divided into cantons, which means that there is no intermediate layer of decisionmaking and administration between the entity and municipal level of government. According to the Law on Territorial Organization of the Republika Srpska, the Republika Srpska consists of 62 municipalities and two cities. The responsibilities of municipalities are enumerated in the Constitution, and they include enacting a development program, urban planning, and budget, taking care of construction, maintenance and use of local infrastructure, as well as other public facilities of importance to the municipality, execution of laws, other regulations and general enactments of the Republika Srpska whose execution is entrusted to the municipality, establishing agencies, organizations and services to meet the needs of the municipality, and regulating their organization and work, etc. The municipal authorities are the Municipal Assembly and the Municipal Mayor whose responsibilities are set forth in the Law on the Local Self-Government of the Republika Srpska, 49 while judicial authority belongs to basic courts. (Figure 7) Above 49 The Law on the Local Self-Government in the Republika Srpska, Official Gazette No. 101/04 21

23 mentioned Law on the Local Self-Government of the Republika Srpska also prescribes responsibilities of cities which include complete regulatory competences concerning urban planning and environmental protection, execution of laws and other regulations, execution of all responsibilities assigned to municipalities by law concerning public transport, health protection, tourism, trade, etc. Units of the local self-government can be divided into local communities if it is in the interest of the population of the local self-government unit. Local communities have Councils consisting of maximum 11 councilors elected by voters who have their place of residence on the territory of the local community. Division of powers in Municipalities of the Republika Srpska Legislature Executive Judiciary Municipal Assembly Mayor of the Municipality Basic Courts Figure 7 8. Division of powers in the Brčko District The final phase in the process of implementation of the Dayton Peace Agreement was the Final Award of the Arbitral Tribunal for the Dispute over the Inter-Entity Boundary in the Brčko area according to which the Brčko District of Bosnia and Herzegovina was established. The Brčko District of Bosnia and Herzegovina is a single administrative unit of local self-government 22

24 existing under the sovereignty of Bosnia and Herzegovina. The responsibilities of the public authorities in the Brčko District are District economy, finances, public property, public services, culture, education, health care, environment, social welfare, judiciary and legal services, police services, housing, etc. The District is based on division of powers the legislative power is vested in the District Assembly, the executive power is exercised by the District Government, while judicial power belongs to District courts. (Figure 8) Pursuant to the Statute of the Brčko District, the District Assembly is the legislative body of authority authorized to adopt the District budget, laws, decisions and resolutions; to decide, at the mayor s initiative, on public loans and indebtedness of the District; to review the annual audits made by the District institutions for financial control; to initiate disputes before the Constitutional Court of Bosnia and Herzegovina in accordance with Article VI (4) of the Constitution of Bosnia and Herzegovina; and to perform other functions in accordance with this Statute and the law. The Assembly is composed of thirty-one councilor elected in general, free, fair, and direct elections by secret ballot in accordance with the laws of Bosnia and Herzegovina and the District. The District Government is composed of the Mayor, the Deputy Mayor, the Government Chief Coordinator, and the Heads of Departments. The Mayor is elected by the District Assembly, while the Deputy Mayor, the Government Chief Coordinator, and the Heads of Departments are selected or dismissed by the Mayor based on professional criteria. The nominees for the position of the Mayor have to present their program to the Assembly. After consideration of the program of the nominees, the District Assembly elects the Mayor. The Mayor presides over the District Government and his responsibilities involve implementation of the laws of Bosnia and Herzegovina and the District, promulgation of the appointments, promotions and dismissals of all employees in the public administration in accordance with the law, submitting draft laws and making recommendations to the Assembly, proposing the budget of the District and producing the financial reports of the District, etc. The Brčko District judiciary is composed of the Basic Court and the Appellate Court. Additionally, judicial sector comprises Judicial Commission, the Prosecutor's Office, and the Agency for Legal Aid. The establishment, organization and jurisdiction of the District Courts are 23