How to unblock state authorities: Even two members of the BiH Presidency can dissolve the House of Peoples

Written for NAP by: Dr. sc. Amir Šelo, legal expert

A modern democratic state is a social value that deserves and requires legal protection. The protection of a democratic and constitutional state stems from the protection given to its citizens, because an individual can only maintain and realize their fundamental rights within a properly functioning constitutional and political framework.

There is no doubt that it is in society's interest to protect the constitutional democratic state. Such legal protection is particularly significant in states with complex constitutional arrangements (federations, regional states, and other forms of complex states). Namely, in addition to criminal protection against offenses committed against the sovereignty of such a state, appropriate constitutional protection is also needed to achieve the supremacy of the federal constitutional order on which such a state is organized.

Activities that harm or endanger the organizational and functional structure of a democratic state with the aim of destroying it or its institutions are very dangerous. Such activities can prevent state institutions from performing their constitutional duties. Appropriate protection of the constitutional order requires the prohibition of actions, including attempts and preparations for such actions, and appropriate criminal law sanctions.

Criminal offenses against the constitutional order harm the essence, structure, and functioning of the state. Legal protection (constitutional and criminal) in this regard has a dual purpose: protecting the very existence of the system of government, i.e., preventing the actions of subjects who seek to overthrow the constitutional order in a non-democratic way, and protecting state institutions to enable them to perform their functions properly.

The relationship between the supremacy of the federal constitution and sub-national administrative units cannot be answered by criminal law norms, but exclusively by constitutional court bodies established on the basis of the constitution and whose competencies are defined by the constitutions of complex states. This clearly shows the importance of constitutional law as the basic branch of internal public law.

One of the fundamental characteristics of a modern state is sovereignty. Sovereignty is understood today as a characteristic of state power by which, in every state, there exists and must exist the highest, indivisible, and absolute power that is not subject to anyone's control. By analyzing the concept of sovereignty, one can speak of external and internal sovereignty of the state. External sovereignty is a characteristic of international law based on which it has supreme authority over persons and things in a certain territory, and is independent of other authorities, independently decides on its internal organization and its relations with other international subjects.

In international law, it also appears as the right of a sovereign state over its natural resources, the right not to be subject to the jurisdiction of another state, the legal equality of states, the duty not to interfere in the internal affairs of another state, the prohibition of threat or use of force contrary to the political independence and territorial integrity of another state. The aforementioned can be linked to Article 1 of the Convention on Rights and Duties of States adopted in Montevideo in 1933. Article 1 of this Convention stipulates that a state as a subject of international law should have the following qualifications: a permanent population; a defined territory; government and the capacity to enter into relations with other states.

Internal sovereignty is an attribute that the state has in relation to the society that is subordinate to the authority of that society. In this sense, sovereignty rests in the supreme authority over civil society and has its legal (de iure) and its factual aspect (de facto). The legal part of sovereignty rests in the person, body, or organ whose decisions cannot be legally challenged. The factual part of sovereignty rests in the person, body, or organ that actually controls the powers exercised and realized in the name of authority. In the United Kingdom, the legal aspect of sovereignty rests with the institution of "The Monarch in Parliament," while executive decisions are made by the cabinet that controls the political process. Therefore, it is necessary to distinguish between the sovereignty of the state (sovereignty as a characteristic of the state) and sovereignty within the state (the question of the holder of sovereignty).

More recent constitutions have begun to redefine the citizen as the holder of sovereignty. For example, Articles 2 and 3 of the Constitution of North Macedonia stipulate: "The sovereignty of the Republic of Macedonia is indivisible, inalienable, and non-transferable. Sovereignty in the Republic of Macedonia originates from the citizens and belongs to the citizens. The citizens of the Republic of Macedonia exercise their power through democratically elected representatives, through referendums, and through other forms of direct expression."

Characteristics of State Power

From the perspective of today's states, there are three essential characteristics of state power: independence, continuity, and indivisibility. The independence of state power means that state power is not subordinate to any other power, that within the state territory there is no higher power than the state. State power implies the possibility and power to define the framework of its competencies (the state has the competence to prescribe competencies), as well as to apply all necessary measures to realize those competencies.

The continuity of state power implies that this power is permanent, regardless of changes in its holders. The indivisibility of state power is an attribute that means that this power is one, even when it is exercised by multiple bodies in an organizational and functional sense. All these bodies function to realize one power - state power, from which their competencies are assigned. The aforementioned attributes of state power are essentially an internal manifestation of state sovereignty.

For example, Article 2 of the Constitution of the Republic of Croatia stipulates that the sovereignty of the Republic of Croatia is inalienable, indivisible, and non-transferable. The sovereignty of the Republic of Croatia extends over its land territory, rivers, lakes, canals, internal waters, territorial sea, and the airspace above these areas. The Preamble to the Constitution of Bosnia and Herzegovina, which has normative character, states: "...Committed to the sovereignty, territorial integrity, and political independence of Bosnia and Herzegovina..." From the foregoing, it can be concluded that both a unitary state like Croatia and Bosnia and Herzegovina as a complex state view the issue of sovereignty as an attribute of the state. Sovereignty in complex states belongs to the central government. For example, in a federation as a form of complex state, sovereignty most often belongs to the federation for the following reasons:

• supremacy of the federal constitution over the constitutions of sub-national entities/federal units (e.g., Article VI, Section 2 of the US Constitution provides for the supremacy of the federal constitution and laws over the constitutions and laws of individual states and the obligation of the judiciary to give preference to federal law);

• conditions that the federal constitution imposes on sub-national entities;

• precedence of the federal constitution over the constitutions of federal units;

• federal jurisdiction regarding constitutional revision;

• division of competencies between the federal state and federal units in the federal constitution (e.g., unlike most federations, Section 92 of the Canadian Constitution Act of 1967 lists 16 areas that fall under the jurisdiction of the provinces, while other competencies are given to the federal level);

• constitutional guarantees for respecting the scope of competencies by the actions of federal bodies;

• the possibility for federal bodies to adopt coercive measures to guarantee obligations;

• federal interventions to guarantee in case of danger to the order of federal units, as well as for general order (e.g., US Constitution, Article I, Section 8, and Article IV, Section 4);

• federal judicial bodies supervise compliance with spheres of competence, interpret the constitution, and protect federal sovereignty and order (US Constitution, Article I, Section 8; Canadian Constitution Act, Article 101).

Criminal Law Protection of the State Constitutional System

Criminal law protection of the state and its institutions has always occupied a significant place in the criminal legislation of every country. Until the mid-19th century, and in the legal systems of the 20th century, attacks on the state and its institutions were considered the most serious and morally most condemned offenses. Since its inception and in almost all stages of its development, the state has strived to protect the established social order, the existing system of government, and its holders from all attacks that could endanger it through harsh repression. Therefore, it could be said that offenses of this type have existed for as long as there has been government, the state, and the struggle for power.

In Anglo-Saxon law (Canada and the United States), these are offenses against public order. In the legal system of the United States, some of these offenses are prescribed by the Constitution itself, so they can also be called constitutional offenses. In European continental law, these are offenses against the constitutional order and territorial integrity of the state (Spain, Bosnia and Herzegovina). Spain is taken as an exceptional example of a complex state in which criminal legislation has prescribed multiple forms of offenses against the constitution and state institutions.

The Spanish Criminal Code (Ley Orgánica 10/1995, de 23 de noviembre, «BOE» núm. 281, de 24/11/1995) in Title XXI discusses "Criminal Offenses Against the Constitution." Thus, Article 472 prescribes rebellion. Conviction for the crime of rebellion is imposed on those who act violently and publicly in order to:

• abolish, suspend, or amend the Constitution in whole or in part;

• remove the King or Queen, the Regent, or the members of the Regency in whole or in part from all or part of their prerogatives and powers, or to compel them to perform an act against their will;

• prevent the free holding of elections for public office;

• dissolve parliament or any legislative assembly of an autonomous community, in order to prevent them from meeting, debating, or resolving, to compel them to adopt any resolution, or to deprive them of any of their attributes or powers;

• declare the independence of any part of the national territory;

• replace the Government of the nation or the Governing Council of an autonomous community with another, or to usurp for oneself, or to deprive the Government or the Governing Council of an autonomous community, or any of its members, of powers, or to prevent or limit their free exercise, or to compel any of them to perform acts against their will;

• deter any armed force from obeying the Government.

According to the provisions of this article, the Spanish public prosecutor filed charges against the leader of the secessionist movement for Catalonia, Carles Puigdemont.

Chapter III of Title XXI of the Criminal Code prescribes criminal offenses against state institutions and the separation of powers. This concerns acts of unlawful obstruction of the exercise of the powers of the crown and legislative bodies, as well as acts of serious defamation against the highest holders of power.

Blockade of the House of Peoples of the Parliamentary Assembly of BiH - good practices from Spain

Considering the current constitutional arrangement of Bosnia and Herzegovina, there is no doubt that it is filled with numerous mechanisms that contain elements of blocking the functioning of Bosnia and Herzegovina's institutions. One such mechanism is prescribed in Article IV/1.b) of the Constitution of Bosnia and Herzegovina, which stipulates that nine members of the House of Peoples constitute a quorum, provided that at least three Bosniak, three Croat, and three Serb delegates are present. The Constitution of Bosnia and Herzegovina also prescribes the possibility of dissolving the House of Peoples in Article IV/3g), which stipulates that the House of Peoples can be dissolved by decision of the Presidency or the House itself, provided that the House's decision to dissolve is made by a majority that includes the majority of delegates from at least two peoples, Bosniak, Croat, or Serb. Therefore, the true intention of the constituent assembly was not for the mechanism of non-attendance of three delegates from one caucus to be used as a mechanism for blocking the adoption of laws and other regulations, because the constituent assembly also foresaw the possibility of dissolving the House of Peoples.

The Rules of Procedure of the Presidency of Bosnia and Herzegovina ("Official Gazette of BiH" no. 10/213, 32/13, 22/14, and 54/24) stipulate that the decision to dissolve the House of Peoples can also be made by two members of the Presidency. Namely, Article 39 of the Rules of Procedure of the Presidency of Bosnia and Herzegovina stipulates that the Presidency can dissolve the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, including cases of changes in the parliamentary majority.

Before dissolving the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, the three members of the Presidency can jointly initiate seven-day consultations with:

a) the Chairperson and Deputy Chairpersons of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina together;

b) the Chairperson and Deputy Chairpersons of the National Assembly of Republika Srpska;

c) the presidents of the caucuses in the National Assembly of Republika Srpska, starting with the oldest;

d) the Chairperson and Deputy Chairpersons of the House of Peoples of the Parliament of the Federation of Bosnia and Herzegovina together;

e) representatives of the Bosniak and Croat caucuses of the House of Peoples of the Parliament of the Federation of Bosnia and Herzegovina, starting with the oldest.

After the consultations, and in any case no later than 7 days from the start, the Chairperson convenes an extraordinary session. The agenda of the extraordinary session contains only one item - the decision to dissolve the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina. The Presidency strives to reach a consensus decision on the dissolution of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina. If consensus is not reached, two members of the Presidency can still dissolve the House of Peoples.

In addition to the above, Spain can serve as an example for Bosnia and Herzegovina, as its Criminal Code in Title XVI prescribes criminal offenses against the Constitution, among which are detailed criminal offenses for all unlawful attempts that lead to the obstruction of the exercise of constitutional powers of Spanish institutions.

In this regard, in addition to the existing criminal offenses from the Criminal Code of Bosnia and Herzegovina, Article 220 (Abuse of Office or Authority) and Article 224 (Negligent Work in Service), one of the possible solutions is the introduction of new forms of criminal offenses whose characteristics are contained in unlawful forms of blocking the work of Bosnia and Herzegovina's institutions.