Forum for Ethics and Compliance in BiH publishes a transcript of a discussion between Milan Tegeltija (president of the HJPC), Bojan Bajić (president of WEFEC) and Monika Mijić (member of the HJPC), which took place publicly on Facebook. The discussion highlighted major misunderstandings regarding the application of ethical standards in the judiciary, but also different interpretations of the HJPC Law itself, the Rules of Procedure of the Council and the Rulebook on Conflict of Interest. Although writing on Facebook is a somewhat freer form of expression that is not suitable for columnist-analytical forms, Forum for Ethics and Compliance has decided to convey it to readers, because it believes that there is not enough direct exchange of arguments in public. We believe that the reforms in BiH lack democracy, publicity and critical debate, so in that sense we appreciate that this transcript contributes to the reform of the judiciary in BiH.
Debate between Milan Tegeltija and Bojan Bajić on the interpretation of Article 6, paragraph 3 of the Law on the HJPC and Article 6 (b) of the Rules of Procedure of the Council:
First act: The Ethics and Compliance Forum sent a complaint to the HJPC (June 11, 2019):
On June 11, 2019, Forum for Ethics and Compliance in BiH sent a complaint to the members of the HJPC against the President of the Council, Mr. Milan Tegeltija, who on May 23, 2019 organized an illegal and manipulative vote of the Council in terms of obtaining support for his future work. violated the Law on the HJPC and the Rules of Procedure of the Council, which in cases of doubt in the integrity of Council members provide for disciplinary proceedings against a member of the Council, and mandatory temporary removal from office until the end of the proceedings. In this way, the President of the Council knowingly avoided acting in accordance with the Law and the Rules of Procedure in order to prevent the Council from examining the facts and establishing the responsibility of the President of the Council himself.
The full text of the complaint can be read at this link: https://etika.ba/prituzba-za-nepostupanje-predsjednika-vstv-milana-tegeltije/
Second act: Milan Tegeltija on his Facebook profile (June 13, 2019 at 18:36):
Since completely unprofessional, erroneous and manipulative interpretations of the provisions of the Law on the HJPC and the Rules of Procedure of the HJPC are placed in the public, which tries to create the impression that the Rules of Procedure were violated at the HJPC session on 23.05.2019, I am obliged to clarify the following:
1. The provision of Article 6b of the Rules of Procedure of the HJPC, which provides for the establishment of an ad hoc commission, which is competent to establish the facts regarding the violation of the duties of members or president of the HJPC and which may propose action under Article 6 paragraph 3 of the HJPC Law (Adoption or rejection of a proposal for removal), is a procedural provision that represents an intermediate stage between a proposal for removal that requires at least 1/3 of the members of the HJPC (5 members of the HJPC) and a decision to remove the president or member of the HJPC requiring a two-thirds majority of members present and vote (HJPC has a total of 15 members)
2. Therefore, the ad hoc commission referred to in Article 6b of the Rules of Procedure cannot be formed if there is no proposal for removal, signed by 1/3 of the members of the HJPC as provided for in Article 6 of the Law on the HJPC.
3. The ad hoc commission from Article 6b of the Rules of Procedure of the HJPC is a rule of procedure that serves for the implementation of the Law on the HJPC and not as its replacement, therefore the ad hoc commission from Article 6b of the Rules of Procedure is not an alternative to the necessary 1/3 of the members of the HJPC initiating that removal procedure from Article 6 of the Law on the HJPC.
4. This means that in order for the ad hoc commission referred to in Article 6b of the Rules of Procedure to be formed, an initiative for the removal of a member or president of the HJPC must be signed by 1/3 or at least 5 members of the HJPC.
Third act: Bojan Bajić on his Facebook profile (June 13, 2019 at 9:17 p.m.):
EXTRAORDINARY NEWS: Milan Tegeltija one step closer to replacement. (as far as I am concerned the case is resolved).
Milan Tegeltija spoke after I complained to the HJPC in front of the Ethics and Compliance Forum that the President of the Council did not act in accordance with Article 6, paragraph 3 of the Law on the HJPC and Article 6b of the Rules of Procedure of the Council which would examine the facts of ‘bribing’, which would mean the obligatory removal from office until the end of the proceedings, and that instead Milan Tegeltija 23.05. organized a manipulative and irrelevant voting ceremony of the members of the Council in support of the President.
…
EXPLANATORY STATEMENT:
Tegeltija misinterprets the Law several times and says:
– The ad hoc commission is formed as an intermediate phase, only after one third of the members of the Council (i.e. five of them) request the removal of a member or president of the Council;
– the formation of an ad hoc commission from Article 6b of the Rules of Procedure cannot take place if there is no proposal for removal, signed by 1/3 of the members of the HJPC as provided for in Article 6 of the Law on the HJPC;
– says that the ad hoc commission is not an alternative to the removal initiative of 1/3 of the members, who are allegedly the only ones authorized to launch the removal initiative;
– Finally, Tegeltija underlines: ‘it means that in order for an ad hoc commission from Article 6b of the Rules of Procedure to be formed, an initiative must be signed to remove a member or president of the HJPC of 1/3 or at least five members of the HJPC.’
Now let us suppress this interpretation once and for all:
Article 6, paragraph 3 of the Law on the HJPC reads as follows:
Article 6, paragraph (3): Decision by which a member is removed from office for the reasons stated in paragraph 1, item (d), (e) and (f) of this Article, the Council shall act on the proposal of at least one third of its members or on the proposal of the Disciplinary Board, by a two-thirds majority of all members present and voting.
Pay attention to the parting conjunction (or) in the following place: … one third of its members (or) on the proposal of the disciplinary commission …
This parting conjunction (or) says that the initiative for removal can be initiated by either 1/3 of the members or the disciplinary commission. So Tegeltija, the ad hoc commission IS an ALTERNATIVE to the initiative for dismissal that can be initiated by 1/3 of the members and the initiative of 1/3 of the members MUST NOT be previously signed in order for an ad hoc commission to be formed!
NOW when we have Tegeltija’s recognition that Articles 6 in the Law and the Rules of Procedure can remove him, and when we have proof that he did not pay attention to this legendary parting conjunction (or), now it is necessary that professional, honorable, honest and conscientious members of the Council do not allow Tegeltija drag them into the abyss of legal amateurism, arrogance and irresponsibility, and to activate these articles of the Law and the Rules of Procedure at the Council session next Wednesday, so that we can say goodbye to Tegeltija and then start slowly arranging the judiciary properly.
Thank you for your attention,
Bojan Bajić, President of the Forum for Ethics and Compliance in BiH
Milan Tegeltija no longer spoke out on this issue. The debate is over.
*****
Discussion between Monika Mijić and Bojan Bajić on the topic of conflict of interest:
First act: Bojan Bajić publishes a column on the website of the Forum for Ethics and Compliance titled: Ethical duel in the HJPC: Monika Mijić vs Svetlana Brković (June 26, 2019)
The column argues that Monika Mijić was in a conflict of interest because she did not resign from the Council when she decided to apply for the position of a judge of the Constitutional Court of the Federation of BiH, and that this was basically an unethical standard of conduct. Opposite the behavior of Monika Mijić is the example of Council member Svetlana Brković, who in 2016 was in the same position when she applied for the position of a judge of the Constitutional Court of Republika Srpska, but she resigned from the Council for ethical and moral reasons and showed a high standard of ethical conduct, public interest and preserving the reputation of the HJPC as an institution.
You can read the entire column at this link: https://etika.ba/eticki-dvoboj-u-vstv-monika-mijic-vs-svetlana-brkovic/
Second act: Monika Mijić on Facebook under the name Moni Mijić and Bojan Bajić exchanged several arguments on this topic in the period 04-05 July 2019, which we will present in chronological order:
Moni Mijić: If you had savings in Ljubljanska bank, you would surely have heard of me earlier!
Bojan Bajić: I praised the success regarding Ljubljanska bank in the text, I even called it a phenomenal result.
MM: Mister Bojan, I can say about my colleague Mijić that she is an exceptional lawyer and that she deserves a place in the HJPC.
Moni Mijić: Thank you dear MM
Bojan Bajic: MM I don’t think I even disputed the legal aspect in the text, I even praised some successes. My point goes in the direction of ethical responsibility and putting the public interest before the private. We have little understanding that Western reforms in BiH have incorporated the institute of public trust into the laws as a legally relevant fact when making decisions. After all, it is clearly written in the Rulebook on Conflict of Interest.
Moni Mijić: There is no conflict of interest, because the HJPC does not elect judges of constitutional courts, but the executive and legislative branches. Clear as day, the discussion is completely superfluous. Anyway, thanks for the nice wishes and hope it’s not too late for me to fix it. It gives me an incentive to be a better girl 🙂
Bojan Bajić: The HJPC makes an initial list of candidates, from which the executive authority and the legislature continue to elect, which means that the HJPC participates in the process, and it is then clear as day that there is a conflict of interest. This means that Monika Mijić could be on that initial list because of bias because she is a member of the HJPC and not because she is among the best candidates. Although all this is irrelevant, you had to resign because the public’s trust was violated, and this segment is precise in the regulations. I was serious with the suggestion that you need to correct yourself on this issue 🙂
Moni Mijić: Monika Mijić was already on that list in 2013. So I was already evaluated by the then HJPC as a suitable candidate for the Constitutional Court. The HJPC puts on that list all candidates who meet the requirements for a judge of the entity constitutional court, nothing more.
This text is “so patronizing” so I suggest correcting in that sense 🙂
Bojan Bajić: In this last comment, you admitted that the HJPC is participating in the process, unlike the penultimate comment when you did not mention it. We have clarified that part.
Does the HJPC compile a list of candidates on the basis of the formal completion of all necessary papers or is an interview conducted with the candidates?
Moni Mijić: conducts an interview, in order to assess whether the candidate is a prominent lawyer, suitable to be a judge of the entity constitutional court. I passed that assessment a long time ago. This decision of the HJPC that this rulebook does not apply to cases of election of judges of entity courts is of a general nature and applies to all future cases when a member of the Council applies for a position as a judge of the Constitutional Court. I’m tired. Goodnight.
Bojan Bajić: Did you apply for the competition for a judge of the Constitutional Court of FBiH announced in February this year?
Moni Mijić: for every competition announced for the Constitutional Court of the F BiH. I will probably sign up for the next one as well, if I am not elected now. Then I will not be a member of the Council, but all members of the Council will be able to apply after this decision without resigning and without someone personally dragging them through the mud, like you are doing to me. The first ones always go bad. I firmly believe that there is no conflict of interest and that is why the Council had to decide on this issue. Had I resigned, this issue would still have remained unresolved and postponed. Thus, it is finally resolved.
Bojan Bajić: Please don’t feel that I’m dragging you through the mud, I think we’re both dragging ourselves through the facts like this, and it turns out how it turns out. From our discussion of the facts so far, we can conclude the following:
1. It doesn’t matter that the Council put you on the list as a suitable candidate in the last convocation in 2013, because the previous competitions were annulled as invalid (there is a lot of information about this on the portals), so you applied for the competition published in February this year (this is how you answered my question). This year you are undoubtedly a member of the Council, and in 2013 you were not a member of the Council.
2. As you yourself said, the HJPC conducts an interview and assesses the suitability and adequacy of the candidate. So this year you had to be interviewed at the HJPC after a repeated competition, so it doesn’t matter what happened in 2013. The HJPC assessed that you were an adequate candidate and put you on the list, which means that the HJPC could assess that you were not an adequate candidate. Since you are currently a member of the Council whose adequacy for a position in the FBiH Constitutional Court has been assessed by the Council, this means that you are in a classic conflict of interest. It’s so obvious.
3. 2 days before the Council voted on your conflict of interest you were against 4 members of the Council who sought to determine the responsibility of Tegeltija, then later that Tegeltija was the decisive seventh vote that you are not in a conflict of interest (the result of the vote was 7 : 6). Do you notice how much you as a member of the Council can influence the decisions of the Council ??? Don’t you see a conflict of interest? For example, if you on 21.06. supported the 4 members of the Council to determine Tegeltija’s responsibility, you would be the 5th member of that group, and according to Article 6, paragraph 3 of the Law on the HJPC, 5 members are needed to initiate the procedure of determining responsibility, then an ad hoc commission of 3 members would be formed (according to the Rules of Procedure) and Tegeltija could be removed from the Council during the procedure. This then means that it could have happened that Tegeltija would not be present at the session on 23.06. when your conflict of interest is voted on. All this shows how powerful a member of the Council is who can influence major issues in the judiciary, and thus there is a real and perceived conflict of interest when Council decides on your adequacy as a candidate for the Constitutional Court.
4. The Rulebook on Conflict of Interest stipulates that resignation is also submitted when there is a perceived conflict of interest, not only a formal-legal one, and that perceived one is objectified through public trust. You cannot deny that the public’s trust has been violated when at the session of the Council from 21 to 23 June we saw that there is a principle ‘you help me, I help you’ as described above. You did not comment on the perceived conflict of interest.
5. You are wrong when you say that the decision of the Council has resolved this matter for all time, because illegal and obviously wrong decisions will have to be corrected sometime, you will see it eventually.
I still think that you need to correct yourself because it is a pity that you are endangering your career and reputation because you did not resign due to a conflict of interest 🙂
Moni Mijić: the competition from 2013 was not annulled. At that competition, the President of the FBIH, Mr. Budimir elected Ms. Budimir as judge. No, you are not dragging anything through the facts, but on the basis of half-information and through the prism of your attacks on HJPC, you are dragging me through the mud along the way, from the height of a self-proclaimed assessor of law, ethics and morals, you dare to judge another person morally.
Moni Mijić: In the Brković case, the President was of the opinion that this is not a conflict of interest, now he has only confirmed his previously expressed opinion on the issue that it has nothing to do with me or my views. 3 of the 4 members you are talking about voted in favor of the president. Not only that, but they elected that president twice. None of them initiated the dismissal initiative, nor did they resign from the Council. Any member who considers that this composition of the Council has been compromised may resign.
Moni Mijić: I am against grouping members of the Council in giving press releases. Either the statement of the HJPC or each for himself personally. I consider the divisions by groups in addressing the public to be inappropriate for the institution.
Bojan Bajić: This argument regarding the competition from 2013 puts you in an even more difficult situation. So you applied then and you didn’t pass. But above in your comment you tried to manipulate the public when you said that in 2013 you were assessed as suitable by the then HJPC when you were not a member of the Council, but you were silent that you now applied again in February, when you was a member of the Council, and suitability and adequacy are re-established. So 2013 and 2019 adequacy assessments have nothing to do with each other, because in the meantime anything could have happened, so in 2019, as a member of the Council, you were in a conflict of interest when the assessment of your adequacy was done. Let me not complicate now with the fact that the Rulebook on Conflict of Interest of HJPC Members was adopted only on May 29, 2014. I am not a self-proclaimed assessor of morality, but I deal professionally with ethical standards and their promotion and implementation. In relation to internationally accepted ethical standards, which are enshrined in both the Law on the HJPC and the Rulebook on Conflict of Interest, you are in a conflict of interest.
Bojan Bajić: It is true what you say that Milan Tegeltija was of the opinion that Svetlana Brković would not be in a conflict of interest, but I ask you again a question you avoid answering, and that is how you interpret the Rulebook on conflict of interest in the segment of perceived conflict of interest, in situations where public confidence has been undermined? For example, in the public perception, Jadranka Lokmić Misirača, who was explicitly of the opinion that Svetlana Brković IS in a conflict of interest, did not appear at the session when your conflict of interest was voted on. JLM is perceived by the public as a big fan of Milan Tegeltija, so the public perceives that she did not appear in that vote because she would have to vote if you were in a conflict of interest, and then the result of the vote would be 7: 7 and you would not pass.
By no means do you respect the fact that the Law on the HJPC is made according to the Western model, and in the West the perception of the public is a legally relevant fact for the assessment of conflicts of interest. This means choosing between your personal interest and the interest of the HJPC. The decision of the Council realized your personal interest, but from the aspect of public trust, the rating of the HJPC as an institution has been lowered.
It is a conflict of interest, you had to give up your personal interest to prevent the undermining of public confidence in the HJPC. According to ethical standards, you must know that there is a perceived conflict of interest even in the event that Jadranka Lokmić Misirača now presents a justification for not coming that day, e.g. that she was sick and that she received an infusion that day, because the public already suspects that games are being played in the HJPC.
It should also be noted that the majority of Council members in the 2016 discussion expressed the view that Svetlana Brković would have been in a conflict of interest if she had not resigned. This tells you that in 2016, the decision of the Council would be a majority that it IS a conflict of interest, and in your case it happened tensely that the Council voted that it was NOT a conflict of interest. Isn’t this a justifiable reason for the public to doubt the credibility of the HJPC?
You had only one option, and that was to act like Svetlana Brković, to put the public interest above personal interest and to resign.
Bojan Bajić: 4 members of the Council requested that Tegeltija’s responsibility be discussed again, and they used the argument that at the extramural session of the Council on May 23, 2019 at 9 am, the recording was still not released, so that vote in support of the President did not include consideration of the recording. To me, this argument seems logical, so I can’t understand why you on June 21, 2019 at the regular session of the Council did not agree to discuss the responsibility of Tegeltija. Why is it problem for Council to consider the disputed recording? Why prevent that debate? And do you know yourself that Tegeltija must be excluded from activities when the Council is discussing himself? You know that the initiative for dismissal requires 5 members of the Council, and there were 4 of them. Imagine how the public would react positively if you gave that crucial 5th vote and launched the initiative for dismissal, so that in the fact-finding process is finally discussed whether Tegeltija is responsible or not. He would have a chance to present his arguments in the procedure, maybe in the end it would be decided that he is not responsible. But you were on the side of those who do not allow the Council to conduct a liability determination process at all? Believe me I do not want to moralize, but the Council has violated the alphabet of ethical responsibility and the basic postulate of democracy and the rule of law that no one is above the prescribed rules and that everyone’s responsibility can be questioned.
Bojan Bajić: Regarding addressing the public in a group. Groups in the Council already exist and they are recognized by members’ actions or lack of them. It is indisputable that there are groups in the Council that does not allow the Council to conduct the procedure of determining the responsibility of Milan Tegeltija, and you also belong to that group of inaction, and with your silence you send a loud message to the public. On the other hand, we as the public have heard that there is a group of 4 members who want to determine the responsibility of Milan Tegeltija, and they have clearly announced that to the public. While you point the finger at a group that seeks to establish Tegeltija’s responsibility, believe that a large part of the public is pointing the finger at your group that does not allow it.
Bojan Bajić: Dear Monika, you wrote this above:
“In the Brković case, the President was of the opinion that this is not a conflict of interest, now he has only confirmed his previously expressed opinion on the issue that it has nothing to do with me or my views.”
Thus, you did not respond at all to my previous statement:
” 2 days before the Council voted on your conflict of interest you were against 4 members of the Council who sought to determine the responsibility of Tegeltija, then later that Tegeltija was the decisive seventh vote that you are not in a conflict of interest (the result of the vote was 7 : 6). Do you notice how much you as a member of the Council can influence the decisions of the Council ??? Don’t you see a conflict of interest? For example, if you on 21.06. supported the 4 members of the Council to determine Tegeltija’s responsibility, you would be the 5th member of that group, and according to Article 6, paragraph 3 of the Law on the HJPC, 5 members are needed to initiate the procedure of determining responsibility, then an ad hoc commission of 3 members would be formed (according to the Rules of Procedure) and Tegeltija could be removed from the Council during the procedure. This then means that it could have happened that Tegeltija would not be present at the session on 23.06. when your conflict of interest is voted on.”
So I’m telling you that you saved Tegeltija from being temporarily removed from the Council, thus helping yourself by securing a majority, and you answer to me that he only confirmed his previous position. This has nothing to do with each other.
Monika Mijić did not comment on this issue anymore. The debate is over.
