The recent events which unfolded in Bosnia's Tuzla Canton have seriously threatened the rule of law and represent a threat to the stability and functioning of the Canton, reads the letter which the international community's representative to Bosnia overseeing the civilian implementation of the Dayton Peace Agreement which ended the 1992-1995 war in the country, Valentin Inzko, wrote to Tuzla Canton's Assembly and Government on Friday. N1 TV got hold of the letter which can be read below in its entirety.

“The recent developments in the Tuzla Canton have seriously compromised the rule of law and posed a threat to the stability and unimpeded functioning of the institutions in the Canton. The series of actions undertaken on 31 December 2020, including in particular the attempts by one Deputy Speaker of the Assembly to convene and hold an ‘Assembly session’ with representatives of the political parties constituting the new majority in the Assembly as well as the decision of the Cantonal Government concerning the emergence of Extraordinary Circumstances and the subsequent adoption of a number of legal acts by the Government under such Extraordinary Circumstances, disregard the constitutional and legal framework in force and could have implications well beyond the political dispute that triggered those measures. In these circumstances, I would like to share my legal views and propose a way forward.

Considering that proceedings could be initiated before courts concerning the above­ mentioned issues, in particular before the Constitutional Court of the Federation of BiH, the views expressed below are made without prejudice to future decision(s) of courts, should the said matters be brought before them.

First of all, we note that on 16th December 2020, the new majority in the Tuzla Canton Assembly attempted to dismiss the Government and part of the Cantonal Assembly leadership but that the initiative failed after the Cantonal Assembly Speaker Zarko Vujovic later supported by Deputy Speaker Boris Kresic, invoked vital national interest (VNI). It is important to remind in this regard that the applicable legal framework as contained in Article V.2.7a of the FBiH Constitution, Article 26b of the Constitution of the Tuzla Canton as well as article 68 of the Rules of Procedure of the Canton Tuzla Assembly provides that if more than one Speaker or Deputy Speaker of the legislature in the Canton invokes VNI, the adoption of such act shall require majority votes of each caucus of constituent peoples represented in the Assembly in order to be adopted. Unlike VNI procedures initiated by one Speaker or one Deputy Speaker with support of 2/3rd majority of the respective caucus of one of the Constituent Peoples or by 2/3rd majority of one caucus of Constituent People, such invocation is not subject to review by the VNI Panel of the Constitutional Court.

It is however important that such procedure be used sparingly and only to protect the legitimate interest of one or more constituent people(s). A change of majority in the Cantonal Assembly resulting in a vote of non-confidence does not necessarily raise such issues.

With regard to the attempt to convene and hold a parallel ‘Assembly session’ and the ‘acts’ taken on that occasion, the Rules of Procedure of the Tuzla Canton Assembly adopted on the basis of the provisions of the Constitution of the Federation of BiH and the Constitution of the Tuzla Canton clearly provide that an Assembly session should be convened by the Assembly Deputy Speaker only when the Speaker is prevented to do so or the Speaker rejects to convene a session (Article 59). Neither of these two conditions was met for Deputy Speaker Lejla Vukovic to convene the parallel session. Consequently, this event clearly failed to meet the necessary legal requirements to be considered as an Assembly session and the acts adopted therein cannot be considered valid.

The response to this illegal session was the Cantonal Government's decision to invoke Extraordinary Circumstances at an extraordinary session held on 31 December 2020 to subsequently adopt the Tuzla Canton 2021 Budget, the Law on Execution of the 2021 Budget and give consent to the Financial Plan of the Health Insurance Bureau. Whereas Article 45 of the Constitution of the Tuzla Canton empowers the Cantonal Government to enact specific legislative measures of critical importance for the Canton which fall within the competences of the Cantonal Assembly, this can only be invoked upon the fulfilment of all specific conditions provided for in the same article, which specifically requires that: ‘extraordinary circumstances must exist, while both the country and the Canton are in danger and it is objectively impossible to convene the Cantonal Assembly’. Article 45 of the Constitution of the Tuzla Canton reads as follows:

‘In extraordinary circumstances, while the country and the Canton are in danger, and when it is objectively impossible to convene the Cantonal Assembly, the Cantonal Government shall have the authority to pass the regulations which are of vital importance for the Canton, and which fall within the competencies of the Cantonal Assembly. but which cannot derogate the rights and ·freedoms guaranteed by the Constitution of the Federation, this Constitution and other regulations.

A regulation passed in accordance with the previous paragraph shall be submitted by the Cantonal Government to the Cantonal Assembly for verification, as soon as the circumstances which made it impossible/or the Cantonal Assembly to convene cease to exist.

In case of State of War, Imminent Threat of War and State of Emergency (=Extraordinary Circumstances – comment by Slavisa: this is same as in para I), the mandate of the Cantonal Government shall be extended for as long as such circumstances exist, but for no longer than six months after such circumstances cease to exist.’

A declaration of Extraordinary Circumstances amounting to public emergency situations such as those foreseen in Article 45 of the Constitution of the Tuzla Canton represents a serious matter as it alters the distribution of functions and powers between branches of government enabling the Government to pass acts that fall within the competencies of the Cantonal Legislature. For these reasons, the Constitution of the Tuzla Canton limits its exercise, in particular by requiring that such declaration be made in response to an extraordinary situation of such magnitude that it has effects beyond the Canton, also endangering Bosnia and Herzegovina as a whole. In addition, it also requires as a cumulative condition that such extraordinary situation makes it ‘practically impossible to convene the Cantonal Assembly’. The very fact that the Government acknowledged the existence of Extraordinary Circumstances under Article 45 of the Constitution on the day a regular Assembly session was convened indicates that the weakness of the argument.

The fact that the invocation came as a response to the attempt to convene a parallel ‘session’ which was not legally convened shows that it was rather meant to respond to political consideration and to the willingness to invalidate the actions purportedly taken by the “Assembly” on the same day. As a result, on can seriously doubt that the cumulative conditions prescribed by Article 45 of the Constitution have been met for the Government to assume the specific competencies of the Assembly and that extraordinary circumstances made it practically impossible for the Assembly to meet.

As a result of the fact that the “parallel” session was not legally convened, it failed to meet the necessary legal requirements to be considered as an Assembly session and the acts adopted therein should not be considered as valid. Neither was there justification under Article 45 of the Tuzla Canton Constitution for the Government to acknowledge the emergence of Extraordinary Circumstances nor for it to assume the authority to pass regulations falling within the competencies of the Cantonal Assembly.

The Cantonal Assembly holds the key to unlock ing the situation in the Canton. As such, I call upon the Tuzla Canton authorities to convene as a matter of urgency a session of the Canton Tuzla Assembly to adopt the legislative acts which are crucial for the citizens of the Canton including the Tuzla Canton 2021 Budget and the Law on Execution of the 2021 Budget. To do so, it is important that the Speaker of the Tuzla Canton Assembly Mr. Zarko Vujovic calls a session of the Assembly without further delays. We note that procedure exists for the Assembly to overcome the refusal of the Chairman to convene a session.

I would again remind all elected and appointed officials in the Assembly and the Government as well as all political parties have an obligation to work within the constitutional and legal framework at all times. I hope that this opinion will provide the space necessary for the parties represented in the Tuzla Canton Assembly to initiate political discussions as soon as possible with a view to find an agreement that would in no way compromise the rule of law and the ability of the Tuzla Canton institutions to discharge their obligations in the best public interest,” reads the letter of Bosnia's High Representative to Tuzla Canton officials.