Venice Commission - Report on Bicameralism

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Bosnia and Herzegovina

1.Has the country always had a bicameral parliamentary (or congressional) system? If not, from when did the country adopt a bicameral system? Is there a public debate about keeping bicameralism or moving to a unicameral system? Why? What are the terms of the debate? What is the public perception of the usefulness and acceptability (legitimacy) of the second chamber?

In the form in which it has existed since the entry into force of the Constitution of Bosnia and Herzegovina at the end of 1995, Bosnia and Herzegovina has always had a bicameral parliament. There are no public debates related to the issue of retaining the bicameral system. However, it could be said that there are two streams of political views regarding the functioning of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina. One advocates for the House of Peoples to remain in the form in which it currently exists, while the other prefers reducing the powers of the House of Peoples only to deciding on the issue of protecting the vital national interest.

2.What is the population of the country? What is its size?

Bosnia and Herzegovina has about 3.5 million inhabitants and covers an area of 51,129 km².

3.What form of state and form of government has the country? Please provide details with reference to relevant constitutional provisions. a) Unitarian or federal/regional/other form of decentralization; b) Parliamentary, presidential, semi-presidential or mixed

Bosnia and Herzegovina is unique in the world in terms of its State structure. The Constitution of Bosnia and Herzegovina does not define its form of government. It is a decentralized State consisting of two entities: the Federation of BiH and Republika Srpska, and the Brčko District of BiH. They have a high degree of autonomy, including their own Constitutions, that is, the Statute, which, however, must be consistent with the Constitution of Bosnia and Herzegovina.

4.How many members are in the lower house?

The House of Representatives of the Parliamentary Assembly of BiH (lower house) consists of 42 members. Two-thirds are elected from the territory of the Federation, and one-third from the territory of Republika Srpska.

5.How many members has the second chamber?

The House of Peoples of the Parliamentary Assembly of BiH (second house) consists of 15 delegates. Two thirds are from the Federation (including five Croats and five Bosniaks) and one third from the Republika Srpska (five Serbs).

6.How are members of the second chamber selected? Please describe: a) direct/indirect/mixed suffrage (if the suffrage is indirect or mixed, who elects or appoints the second chamber? b) territorial or other criteria; i) region/provinces/municipalities/others; ii) professional categories/ethnic/age/other; c) candidates’ independence from/affiliation with political parties; d) in case of indirect election, is there an imperative mandate or a similar practice?

Delegates to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina are elected indirectly. Nominated Croat and Bosniac delegates from the Federation are elected by Croat and Bosniac delegates in the House of Peoples of the Federation. Delegates from the Republika Srpska are elected by the National Assembly of Republika Srpska. Delegates are elected on an ethnic basis.

7.Age. What is the age limit to elect and be elected or appointed to the second chamber? Does it coincide with the lower chamber? Are there other requirements for election than those for members of lower chambers?

The act regulating the organization and work of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina (the Rules of Procedure of the House of Peoples) and the Constitution of Bosnia and Herzegovina do not prescribe an age limit for election and appointment to the House of Peoples.

8.Gender. Are there any requirements to achieve gender parity between men and women in the composition of the second chamber or is there any gender quota system? If so, is there a similar requirement or gender quota system for the lower chamber?

There are no explicit requirements for achieving gender parity between men and women in the composition of the House of Peoples. According to the rules of procedure of both houses, it was determined that the composition of the collegium (which consists of the chairman and the first and second deputy chairman) will try to secure the representation of both sexes. In the "Assessment of Gender Equality in Political Life", which was carried out by the OSCE in 2023, it was stated that "the example of the Collegium of the House of Peoples proves that this measure is considered declaratory, not binding.”

9.Term of office or tenure. Duration? Does it coincide with lower chamber? Does the second chamber follow the continuity rule (members are not replaced all at once, new elections concern only part of the chamber at a time)? Can the second chamber be dissolved and if yes, who and how exercises its competences in the meantime? Please report any particularity.

The members/delegates of both chambers of the Parliamentary Assembly of Bosnia and Herzegovina shall be eligible for four years. The House of Peoples may be dissolved by the Presidency or by the House itself, provided that the House’s decision to dissolve is approved by a majority that includes the majority of Delegates from at least two of the Bosniac, Croat, or Serb peoples. The House of Peoples elected in the first elections after the entry into force of this Constitution may not, however, be dissolved (Article IV(3)(g) of the Constitution of Bosnia and Herzegovina. Dissolution of the House of Peoples in Bosnia and Herzegovina has not happened so far. However, there were frequent situations where the mandate of the House of Peoples ended without new delegates being elected. In these cases, the House of Peoples worked in a technical mandate until the election of new delegates. In a case before the Constitutional Court of Bosnia and Herzegovina, (Decision no. U-1/11), the issue raised was the applicant’s standing to request review of constitutionality because he was Deputy Chairman of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, who was a technical mandate holder. When it comes to that issue, the Constitutional Court of Bosnia and Herzegovina noted the following. “As to the allegation that the applicant […], the Deputy Chairman of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina at the time of lodging the request was not authorized to submit the relevant request, the Constitutional Court recalls that in its the Decision on Admissibility and Merits U-2/11 (see Constitutional Court, Decision on Admissibility and Merits no. U-2/11 of 27 May 2011, […]), considered the same allegation and concluded that it was not well-founded taking into account the provisions of Article 1.3.a, 1.8 and 1.10 of the Election Law of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina nos. 23/01, 7/02, 9/02, 20/02, 25/02, 4/04, 20/04, 25/05, 52/05, 65/05, 77/05, 11/06, 24/06, 32/07, 33/08, 37/08 and 32/10). According to the previously mentioned provisions, the rights and obligations will commence on the day when the representative body has been constituted and when the elected holder of the mandate that has been elected in the direct and indirect elections has signed a declaration by which he/she will refuse or accept the mandate. As to the present case, it is undisputable that at the time of filing the request the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, being constituted by indirect elections, was not constituted in accordance with the results of general elections held on 3 October 2010. In addition, it is undisputable that its mandate, having started on 14 of March 2007, was running until the 14 of March 2011 unless the new House of Peoples was constituted until that date. This provision aims at securing the continuity of government and the permanence of the Parliamentary Assembly in the State, as the fact that bodies cannot be constituted after the elections, should not affect the ability to exercise power and thus affect the functionality of the state. Furthermore, the applicant is not a simple delegate to the House of Peoples but he fulfilled the very official function of deputy chair which is referred to 'the continuity of the functioning of the state' and thus to the right of action of persons authorized under Article VI(3)(a) of the Constitution of BiH. Namely, the Constitutional Court emphasizes that the constitutional task of authorized parties is not only “the authorization” to initiate proceedings for a review of constitutionality pursuant to the above referenced article but also implies a 'constitutional task' to do so. Indeed, the Constitution of BiH has entrusted these subjects, as the representatives of the highest state and entity authorities, a task to initiate an institutional mechanism that safeguards constitutionality, given that the Constitutional Court cannot ex officio perform this duty, as it acts exclusively on 'a principle of request'. Should these subjects be denied the right to do so in the period from new elections until the constituting of the relevant authority, it is obvious that there would be a gap in the protection of constitutionality, and it was certainly not the intention of the framers of the Constitution.”

The House of Peoples is completely filled anew.

10.Congruence. Is it common for the second chamber to have a similar party composition (majority-minority) to that of the lower chamber?

Yes, it is common for the House of Peoples to have a similar party composition to the House of Representatives.

11.Status. Are there differences between the legal status of members of the two chambers, and if so, what (e.g., immunity, conflict of interest)?

There are no differences in legal status between delegates of the House of Peoples and members of the House of Representatives.

12.Rules of procedure. How are the rules governing the second chamber established? Are they different from the lower chamber’s and what are the most relevant differences? Are the internal regulations controlled by the constitutional judge?

The House of Peoples adopts its Rules of Procedure by majority vote. The House of Representatives does it in the same way. The rules of procedure of both chambers regulate the organization and work of these chambers. There are no significant differences between these rules of procedure. They are similar in content. They regulate the work of various committees within each of the houses, the rights and duties of delegates and members, the methods of holding and the course of sessions, etc. Moreover, the business rules of the houses describe the structuring of individual joint management bodies, committees and commissions.

13.Powers/competences: Are the powers and competences the same in the two chambers (symmetrical bicameralism)? If the bicameralism is asymmetrical, what are the powers of the second chamber? Please describe: i) financial; ii) legislative; iii) oversight/control; iv) other specific powers, in particular as regards constitutional reforms, confidence motions, international treaties, etc; v) interim powers (e. g. in case of dissolution of the first chamber). a) Distinguish issues which are not submitted at all to the second chamber/where the final decision is taken by the first chamber/where the second chamber has a limited veto right etc. Please address these questions the other way round if the second chamber has more powers than the first one; b) Are there specific appointments that must be done solely by the second chamber? If so, the appointment must be done by supermajority/qualified majority/simple majority/absolute majority? c) What kind of parliamentary initiative can the first and second chamber exercise? d) What happens in case of disagreement (in case of asymmetrical as well as of symmetrical bicameralism); how many readings before the final decision? Does a mixed commission meet? e) To which chamber are draft laws and other drafts to be examined by Parliament or the legislature submitted first? f) Is the government responsible to the second chamber (when it is before the first one)? g) Are decisions taken by a joint meeting of both chambers and, in the affirmative, which ones? h) Does the second chamber have a specific role in emergency situations?

Both chambers of the Parliamentary Assembly of Bosnia and Herzegovina are equally strong and equal. Article IV(3)(c) of the Constitution of Bosnia and Herzegovina leads also to that conclusion. That Article stipulates, “all legislation shall require the approval of both chambers”. In addition, all adopted decisions are joint decisions of the Parliamentary Assembly of Bosnia and Herzegovina and not its individual chambers. Both chambers act on all issues (legislative, financial, supervisory and control role) and there are no responsibilities that one chamber has and the other does not. In addition, the practical activities of the members of both chambers point to overlapping activities through the existence of joint committees and joint administrative bodies of the Parliamentary Assembly.

Article IV(3)(e) and (f) provides that A proposed decision of the Parliamentary Assembly may be declared to be destructive of a vital interest of the Bosniac, Croat, or Serb people by a majority of, as appropriate, the Bosniac, Croat, or Serb Delegates selected in accordance with paragraph 1(a) above. Such a proposed decision shall require for approval in the House of Peoples a majority of the Bosniac, of the Croat, and of the Serb Delegates present and voting. f) When a majority of the Bosniac, of the Croat, or of the Serb Delegates objects to the invocation of paragraph (e), the Chair of the House of Peoples shall immediately convene a Joint Commission comprising three Delegates, one each selected by the Bosniac, by the Croat, and by the Serb Delegates, to resolve the issue. If the Commission fails to do so within five days, the matter will be referred to the Constitutional Court, which shall in an expedited process review it for procedural regularity.

If the Constitutional Court of Bosnia and Herzegovina determines that a vital national interest has been violated, the challenged law is returned to the proposer, who must offer a different solution in a repeated proposal that will not jeopardize the vital national interest. If, however, the Constitutional Court determines that the proposed law does not endanger the vital national interest, the law is adopted according to the principle of qualified decision-making. It follows from the above that the House of Peoples has the authority to put a certain type of veto on the adoption of a certain law in the parliamentary procedure that has already been adopted in the House of Representatives.

In the case of Bosnia and Herzegovina, there are no special appointments made exclusively by the House of Peoples, with the exception of appointments within the House of Peoples itself.

Both chambers have legislative initiative.

Article IV(3)(d) of the Constitution of Bosnia and Herzegovina stipulates as follows: All decisions in both chambers shall be by majority of those present and voting. The Delegates and Members shall make their best efforts to see that the majority includes at least one-third of the votes of Delegates or Members from the territory of each Entity. If a majority vote does not include one-third of the votes of Delegates or Members from the territory of each Entity, the Chair and Deputy Chairs shall meet as a commission and attempt to obtain approval within three days of the vote. If those efforts fail, decisions shall be taken by a majority of those present and voting, provided that the dissenting votes do not include two-thirds or more of the Delegates or Members elected from either Entity.

The law is considered adopted when both chambers adopt it in an identical text. If this is not the case, a joint harmonization commission is established which tries to reach an agreement on a similar text. If one of the houses does not adopt the report of the joint commission, the draft law is considered rejected.

The legislative procedure in the Parliamentary Assembly of Bosnia and Herzegovina is as follows:

PROCEDURE OF THE COLLEGIUM
The draft law is submitted to the chairman of the chamber, who immediately submits it to the collegium of the chamber. The collegium then submits the draft law to the constitutional law committee and the competent committee, in order to give an opinion on the draft law. If the chamber's collegium concludes that the joint committee of both chambers of the Parliamentary Assembly of BiH is competent to consider the law, the draft law is submitted to the Joint Collegium to act in accordance with the rules of procedure of the chambers.

FIRST COMMITTEE STAGE
In the first stage, the constitutional law committee and the competent committee consider each proposed law.
In the first stage, the CONSTITUTIONAL LAW COMMITTEE shall consider whether the proposed draft law is harmonized with the BiH Constitution and the legal system. The opinion by the Constitutional Law Committee could be either positive or negative.

Positive opinion: The Constitutional Law Committee shall provide positive opinion if it determines that proposed draft law is harmonized with the BiH Constitution and the legal system. A positive opinion by the Constitutional Law Committee shall be submitted to the chamber for further action, in line with the prescribed procedure.
Negative opinion: If the Constitutional Law Committee determines that proposed draft law is not harmonized with the BiH Constitution or the legal system of BiH, the opinion on proposed law shall be negative. The opinion shall be submitted to the chamber for further action, in line with the prescribed procedure.
The COMPETENT COMMITTEE shall consider the principles on which the proposed draft law is based, in the first stage. The opinion by the Committee could be either positive or negative.
Positive opinion: If the Committee supports the principles on which the proposed draft law is based, the Committee shall provide positive opinion and submit it to the chamber, in line with the prescribed procedure
Negative opinion: If the Committee does not support the principles on which the proposed draft law is based, the Committee shall provide negative opinion including mandatory explanation, and submit it to the chamber for further action, in line with the procedure.

FIRST READING – CHAMBER
After receiving the opinions of the Constitutional Law Committee and the competent committee, the chamber shall vote on the proposed draft law in the first reading.
If the opinions by the Constitutional Law Committee and the competent committee are positive, the chamber shall adopt proposed draft law in the first reading. Further legislative procedure continues.
If the opinions of the Constitutional Law Committee and/or the competent committee are negative, the chamber shall vote on submitted opinions. If the chamber adopts the negative opinions of the Constitutional Law Committee or the competent committee, the proposed draft law shall be considered rejected.
If the chamber rejects negative opinions of the Constitutional Law Committee or the competent committee, the proposed draft law shall be returned for reconsideration to the committee which provided negative opinion.

Public Hearing
Prior to submitting the proposed draft law to the second committee phase, the competent committees may decide to hold public hearings on the draft law, which would involve all interested parties, professional institutions and individuals. A public hearing shall last no longer than fifteen days.

Invited individuals and representatives of the bodies and institutions shall provide their opinions on issues related to the draft law, if so requested by the Committee. The Committee shall include in its report the conclusions and the results of the public hearing, and attach in annex the papers and materials submitted in the course of hearing. The transcript of the hearing, if any, shall be also attached.

SECOND COMMITTEE STAGE
The competent committee shall consider the text of the proposed draft law and possible submitted amendments in the second committee stage. Once the competent committee has considered the text of the proposed draft law, the committee shall submit its report to the chamber, in line with the prescribed procedure. The report by the competent committee could be either positive or negative.
Positive opinion: If the competent committee adopts the text of the proposed draft law, the report is considered to be positive, and shall be submitted to the chamber for further action, in line with the procedure.
Negative opinion: If the competent committee rejects the text of the proposed draft law, the negative report of the committee with explanation shall be submitted to the chamber for further action, in line with the procedure.

SECOND READING – HOUSE
After receiving a positive committee report on the text of the proposed draft law, the chamber shall consider the text of the proposed draft law and possible amendments.
If the report by the committee is negative, the chamber shall consider the committee report.
If the chamber adopts a negative report by the competent committee, the proposed draft law shall be considered rejected.
If the chamber rejects a negative report by the competent committee, the proposed draft law shall be returned to the competent committee.

If the chamber adopts the text of the proposed draft law, the draft law shall be considered adopted, and the aforementioned procedure shall also be followed in second chamber.

The vital national interest
A decision proposal by the Parliamentary Assembly of BiH in the House of Peoples may be declared to be destructive to the vital national interest of the one of the three constituent peoples, by a majority votes from the Bosniac, Croat or Serb delegates. Such a decision proposal has to be approved in the House of Peoples by a majority of Bosniac, Croat, and Serb delegates present and voting.

In case the majority of Bosniac, Croat or Serb delegates object to this decision, the Speaker of the House of Peoples will immediately convene a Joint Committee consisting of three delegates, each elected from amongst the Bosniac, Croat, and Serb people caucuses, in order to resolve the issue. If the Joint Committee fails to resolve the issue within five days, the matter will be referred to the BiH Constitutional Court to review it in an expedited process for procedural regularity.

Laws and other acts submitted to the Parliamentary Assembly are, as a rule, first considered by the House of Representatives. However, upon the proposal of the Collegium of the House of Peoples, laws and other acts can be considered first by the House of Peoples. In addition, the legislative procedure can take place simultaneously in both chambers.

Pursuant to Article 140 of the Rules of Procedure of the House of Peoples of the BiH Parliamentary Assembly:

(1) The Council of Ministers of BiH shall be responsible to the House [of the People] for proposing and implementing policies and applying laws, other regulations and provisions, the implementation of which is part of its constitutional and legal competence, as well as for directing and coordinating the work of ministries.
(2) The Council of Ministers of BiH is obliged, at the request of the Chamber, to submit information on all important activities within its competence.

The same provision (duty and responsibility of the Council of Ministers of BiH) is contained in the Rules of Procedure of the House of Representatives of the Parliamentary Assembly of BiH.

Pursuant to Article 21 of the Rules of Procedure of the House of Peoples, the Joint Collegium of both chambers of the BiH Parliamentary Assembly is responsible for:
a) initiating and coordinating inter-parliamentary cooperation;
b) appointing members of temporary delegations participating in inter-parliamentary gatherings, about which they inform the people's caucuses and the deputies' caucuses;
c) deciding on the manner and deadlines of debates regarding decisions that require the approval of both chambers;
d) in accordance with Article 25, paragraph (2) of the Code, it is responsible for considering appeals by delegates against decisions of the Joint Commission for Human Rights, which issued a measure on violation of the Code;
e) determining criteria for selection of members of permanent delegations of the Parliamentary Assembly of BiH;
f) convening and organizing a joint session of both chambers;
g) convening joint meetings with the Council of Ministers of BiH;
h) performing other tasks assigned by the chamber and determined by the rules of procedure of the chambers.

The session of the Joint Collegium of both chambers of the Parliamentary Assembly is held at least once a month.

No special tasks are prescribed for the House of Peoples in emergency situations.

14.Is there a form of intergovernmental conference of regions in your country (conference of ministers or presidents of regions, Landers, states members of the federations)? Does it interact with the second chamber? How often does it meet? What is its specific relevance?

Articles 180 and 181 of the Rules of Procedure of the House of People refer to the appointment of members of the delegation of the Parliamentary Assembly of BiH and friendship groups:

Article 180 (Appointment of members of the delegation of the Parliamentary Assembly of BiH):

(1) Before appointing members of delegations of the Parliamentary Assembly of BiH that participate in parliamentary assemblies of international organizations or in international institutions, the Collegium of the House of Peoples, in cooperation with the Collegium of the House of Representatives, shall determine the number of members that must be elected by both chambers. The Collegium shall strive to find a proportional formula for the composition of delegations that reflects the overall composition of the BiH Parliamentary Assembly, complying with the criterion of adequate gender representation. (2) The Chamber shall appoint its members to participate in parliamentary assemblies of international organizations or in international institutions, while ensuring that the composition of the delegation reflects the total composition of the Chamber. The Collegium, with assistance of the Secretariat of the BiH Parliamentary Assembly, shall ensure that the necessary conditions are met for realization of the planned international activities of permanent and temporary parliamentary delegations. (3) The delegation shall, within seven days after the appointment of the members, elect a chairman and two deputies, determine the program of work and inform the Chamber thereof. (4) The delegation shall adopt the rules of procedure, which determine more closely the rights and obligations of the chairman, deputies and members of the delegation, the relationship with the Chamber, and the method of submitting reports and shall deal with other issues important for the work of the delegation.

Article 181 (Friendship groups)

In accordance with the criteria established in Article 180 of these Rules of Procedure, the Chamber may appoint its members to friendship groups of other countries.

The delegation of the Parliamentary Assembly of Bosnia and Herzegovina participates in the work of the following international assemblies and bodies:

Parliamentary Assembly of the Council of Europe (PACE) - since 1996.

Parliamentary Assembly of the Organization for Security and Cooperation in Europe (OSCE) - since 1996.

Parliamentary Assembly of the Central European Initiative (CEI) - since 1998.

Parliamentary Assembly of the North Atlantic Treaty Organization (NATO) - since 2006.

Inter-Parliamentary Union (IPU) – since 1996.

Parliamentary Assembly of the Mediterranean - since 2002.

Parliamentary Assembly of the Cooperation Process in Southeast Europe (PASEECP) - since 2014.

Parliamentary Assembly of the Union for the Mediterranean (PAUfM) - since 2014.

Parliamentary Assembly of Francophone Countries (PAF) – since 2018.

Group for neighbouring countries - since 2006.

Group for Western Europe - since 2006.

Group for Central and Eastern Europe - since 2006.

Group for Asia - since 2006.

Group for Africa and the countries of the Middle East - since 2006.

Group for North and South America, Australia, Oceania and Japan - since 2006.