BiH Council of Ministers on Draft Law on HJPC on Tuesday: According to the BiH Constitution, out of 20 members, 10 should be Bosniaks, but this is not planned!

(Patria) - A session of the BiH Council of Ministers has been scheduled for next Tuesday, February 25, and the Draft Law on the Court of Bosnia and Herzegovina is on the agenda, and according to Patria's information, the Draft Law on the HJPC, which is causing various reactions, should also be on the agenda. The Draft Law was prepared by the BiH Ministry of Justice, headed by Davor Bunoza (HDZ BiH).

Regarding the HJPC, the new law plans to increase the number of HJPC members from 15 to 20.

Members would be elected as follows: eight members of the Council are elected from among judges, namely (one judge of the Court of Bosnia and Herzegovina, elected by the judges of the Court of Bosnia and Herzegovina, one judge of the Appellate Court of Brčko District or the Basic Court of Brčko District, elected by the judges of the Basic and Appellate Courts of Brčko District of BiH, one judge of the Supreme Court of the Federation of Bosnia and Herzegovina, elected by the judges of the Supreme Court of the Federation of Bosnia and Herzegovina, one judge of a cantonal court from the Federation of Bosnia and Herzegovina, elected by the judges of cantonal courts, one judge of a basic court from the Federation of Bosnia and Herzegovina, elected by the judges of basic courts, one judge of the Supreme Court of Republika Srpska, elected by the judges of the Supreme Court of Republika Srpska, one judge of a district court from Republika Srpska or the Higher Commercial Court, elected by the judges of district courts and the Higher Commercial Court, one judge of a basic court or a district commercial court from Republika Srpska, elected by the judges of basic and district commercial courts.

Eight members are elected from among prosecutors, namely: one prosecutor from the Prosecutor's Office of Bosnia and Herzegovina, elected by the prosecutors of the Prosecutor's Office of Bosnia and Herzegovina, one prosecutor from the Prosecutor's Office of Brčko District of Bosnia and Herzegovina, elected by the prosecutors of the Prosecutor's Office of Brčko District of Bosnia and Herzegovina, one prosecutor from the Federal Prosecutor's Office of the Federation of Bosnia and Herzegovina, elected by the prosecutors of the Federal Prosecutor's Office of the Federation of Bosnia and Herzegovina, two prosecutors from cantonal prosecutor's offices from the Federation of Bosnia and Herzegovina, elected by the prosecutors of cantonal prosecutor's offices, one prosecutor from the Republican Prosecutor's Office of Republika Srpska, elected by the prosecutors of the Republican Prosecutor's Office of Republika Srpska, two prosecutors from district prosecutor's offices from Republika Srpska, elected by the prosecutors of district prosecutor's offices.

One member of the Council is appointed by the Council of Ministers of Bosnia and Herzegovina upon the proposal of the Minister of Justice of Bosnia and Herzegovina. One member of the Council is appointed by the Parliamentary Assembly of Bosnia and Herzegovina, by a two-thirds majority upon the proposal of the Joint Collegium of both houses. One member of the Council who is a lawyer is appointed by the Bar Association of the Federation of Bosnia and Herzegovina, and one is appointed by the Bar Association of Republika Srpska.

A member of the Council is elected for a term of five years and cannot be re-elected for a consecutive term, provided that one person can be elected as a member of the Council at most twice.

The Venice Commission also submitted remarks on this draft, and regarding the composition of the HJPC, they state that "in the specific context of Bosnia and Herzegovina, it would be better to refer to the general representation of peoples, in accordance with the Constitution".

However, the explanation of the BiH Ministry of Justice states:

"However, the provision has been clarified precisely in accordance with the Constitution, and reflects the country's diversity in terms of ethnic, gender or other criteria, as this diversity will certainly increase the legitimacy and public trust in the Council. This provision will certainly not be an obstacle to the proper and primary assessment of objective merit-based criteria during elections. Respecting the Constitutional provisions, it is foreseen that the composition of the Council, as a rule, reflects the composition of the peoples in Bosnia and Herzegovina in accordance with the Constitution of Bosnia and Herzegovina, whereby in the Council, which has 20 members, there must be at least four members from each constituent people and two members from the Others, and at least eight members of one gender. In order to properly implement this rule without abuse, it will be determined by lot, before the publication of the public call, from which institutions the election of Council members will ensure its implementation", which contradicts the opinion of the Venice Commission.

Article 9, paragraph 3 of the Constitution of Bosnia and Herzegovina stipulates that "officials appointed to positions in the institutions of Bosnia and Herzegovina shall, as a rule, reflect the composition of the peoples of Bosnia and Herzegovina".

Furthermore, in the decision of the Constitutional Court of Bosnia and Herzegovina in the "Ljubić" case from 2016, it was determined that "the constitution-maker established proportional representation of Bosniaks, Serbs and Croats as constituent peoples in the institutions of Bosnia and Herzegovina".

Translated, according to the BiH Constitution and the 2013 Census, the new composition of the HJPC should include 10 Bosniaks, six Serbs, three Croats, and one Other. However, the Draft Law that will be before the ministers offers a different solution.