Amendments to the Rules of Procedure and the BiH Constitutional Court: By electing Marin Vukoja, the Three will confirm Dodik's fourth delegate!

If Marin Vukoja is elected judge of the Constitutional Court of BiH during December, Milorad Dodik and his SNSD will get confirmation of their fourth delegate in the Serb Club of the House of Peoples of the Parliamentary Assembly of BiH. This will mean that SNSD cannot be ousted from power at the BiH level until the end of 2026, regardless of what happens in the Three-HDZ-SNSD coalition, writes Istraga.ba.

Let us recall, at the July plenary session of the Constitutional Court of BiH, the appeal by PDP (“AP-81-23 Democratic Party of Progress – PDP)”, which sought the annulment of the decision of the Court of BiH, which had previously ruled that the “disputed” ballot recognized by the Central Election Commission (CEC) could not be recognized, due to which SNSD received the fourth delegate in the Serb Club of the House of Peoples of the Parliamentary Assembly of BiH, could not be decided. However, the decision was not made. Four judges of the Constitutional Court of BiH were in favor of accepting PDP's appeal, while three were against. As five votes were required for a decision, the Constitutional Court of BiH could not make a decision in this case, so everything was postponed to one of the next sessions of the Constitutional Court of BiH. However, four months after July, the Constitutional Court no longer considered PDP's appeal.

To briefly explain what this is about. The National Assembly of Republika Srpska elects five delegates to the Serb Club of the House of Peoples of the BiH PA. Given the decision-making process in the House of Peoples of the BiH PA (entity voting), at least two of the five delegates from the Serb Club must support (i.e., not be against) a certain decision for it to be adopted. Precisely because of this, SNSD sought to gain four delegates in the Serb Club in order to have a control mechanism when making decisions at the BiH level. For example, for the Council of Ministers of BiH or a minister to be dismissed, the decision on dismissal must be voted on by a majority of deputies in the House of Representatives, and a majority (eight) of delegates in the House of Peoples, with an entity majority required in both cases. The opposition from RS in the House of Representatives of the BiH PA has five deputies, which is an entity majority, while in the House of Peoples, everything depends on the “fourth” SNSD delegate.

We remind you that during the voting in the National Assembly of RS, two lists, the first SNSD's and the second PDP's, had 12 votes each. However, the Election Commission of the NSRS, which conducted the election of delegates to the House of Peoples, declared one ballot invalid, which was in favor of the PDP list carried by Nenad Vuković. After declaring that ballot invalid, Vuković dropped to eleven votes, while Snježana Novaković-Bursać from SNSD remained with twelve votes.

This was followed by an appeal to the CEC, whose members, at a session held on December 5 last year, officially determined that the ballot was valid. After that, SNSD filed an appeal with the Court of BiH. The Court of BiH then upheld SNSD's appeal, ordering the CEC to reconsider. The CEC then again decided that the ballot was valid. SNSD again filed an appeal with the Appellate Division of the Court of BiH, which, in the end, annulled the CEC's decision and ordered that a decision be made to annul the disputed ballot. Thus, SNSD gained the fourth delegate in the Serb Club, while the opposition was left with one delegate. Thanks to that delegate, Milorad Dodik now has a controlling stake in decision-making in the House of Peoples of the BiH PA.

The opposition PDP, after all this, filed an appeal with the Constitutional Court of BiH, but the decision, as we said, could not be made because four judges were in favor of accepting PDP's appeal, while three judges, including the President of the Constitutional Court of BiH, Valerija Galić, were in favor of rejecting the appeal.

When the ratio is 4:3, a decision cannot be made, unless the president of the Constitutional Court of BiH is among the four judges.

“Exceptionally, when fewer than the total number of nine judges participate in the decision-making at a plenary session, for reasons stated in Article 90, Paragraph (1) or Article 98 of these rules, as well as when not all judges are elected, or when a judge/judges is/are prevented from performing their function for a longer period due to illness, if at least five judges do not vote identically on the proposal of the decision on the request/appeal, in the case referred to in Article 98, the decision-making on that decision will be postponed to one of the following sessions, but not longer than six months, and if the same situation recurs after the expiry of that deadline, the vote of the President of the Constitutional Court, or the judge replacing them, will be counted twice,” reads the Rules of the Constitutional Court of BiH.

Therefore, for the double vote of the President of the Constitutional Court of BiH to have effect, she must be on the side of the four judges (provided that the Court is not filled). At the last plenary session, Valerija Galić was on the side of the three judges who wanted to reject PDP's appeal.

Precisely because of this, the election of a new judge from the Federation of BiH is important. If the House of Representatives of the FBiH, responsible for appointing judges from the Federation of BiH, appoints Marin Vukoja, he would, given the ties between HDZ and SNSD, be on Valerija Galić's side. In that case, the ratio would be 4:4. President Galić could use her double vote, which would officially reject PDP's appeal, and Dodik's delegate would be confirmed.

Everything, therefore, is in the hands of the Three. A session of the House of Representatives of the FBiH is scheduled for next week, where amendments to the Rules of Procedure should be considered. If the amendments are adopted, the Three and HDZ will have an open path to appoint Marin Vukoju as a judge of the Constitutional Court of BiH. The president of NiP, Elmedin Konaković, has openly admitted that NiP and the Three have no objections to the election of Marin Vukoju.