|Sarajevo, 17 September 2023-40
Krug 99 (Circle 99)
After the Kovacevic decision: Is constitutional reform in Bosnia and Herzegovina necessary but impossible?
1. Three phases can be distinguished in BiH’s constitutional transition since 1995.
After initial imposition of the Constitution as annex 4 of the Dayton Peace Agreement (DPA), in the first decade after the war, numerous “corrections” have been made by the International Community (IC) through the High Representative and by the Constitutional Court in order to make the Dayton arrangement function. These changes were to be consolidated, but the failure of the so-called April Package meant that there was no formal end of post-war transition before the massive disengagement of the International Community. Interaction with the European Union (EU) in the pre-accession phase therefore occurs on the basis of the Dayton Constitution.
As a member of the Council of Europe (CoE) and having ratified its major Conventions, BiH is bound by those international treaties. Art. II.2 of the BiH Constitution provides for the direct applicability of the European Convention on Human Rights and Fundamental Freedoms and its Protocols and that “these shall have priority over all other law”. This provision, guaranteeing perfect alignment with European Human Rights standards, was to some extent a compensation for the lack of democratic legitimacy in the adoption of the Dayton Constitution (similar to post-WW II West-Germany: in both cases, there has never been a referendum).
The BiH Constitution can be amended quite easily (art. X: decision by Parliamentary Assembly, 2/3 majority in House of Representatives), which is an indicator for the intention of considering it rather a transitional arrangement. However, the Constitution has only been amended once (for providing a constitutional status to the District of Brcko).
Since 2006, BiH is basically “stuck in transition”, with no reforms or extremely slow pace of reforms; non-implementation of ECtHR judgments (Sejdic-Finci caselaw); no local elections for 12 years Mostar; secessionist and nationalistic rhetoric; … This raises questions about “local ownership”. In fact, the concept which should stress the end of transition is not used, anymore. No end in sight?
2. Constitutional change is back on the table.
For the last 15 years, any discussion on constitutional reform was taboo, despite the obligation to implement the Sejdic-Finci caselaw of the European Court of Human Rights (ECtHR). In its Opinion on BiH’s application for EU membership, published in May 2019, the European Commission included it as part of the key priorities for accession. The Kovacevic judgment of 29 August 2023 also requires considerable constitutional changes.
The worsening political situation in BiH illustrates the growing difficulties in maintaining the balances and the status quo in the Dayton system. Repeated secession threats by RS President Dodik (and preparations/declarations by RSNA), the renewed frequent and controversial use of the extraordinary ‘Bonn powers’ by the High Representative as well as the former’s confrontation with the latter are only the latest events. Renewed interest in the Balkans and the reanimation of the EU enlargement process as a result of the new geopolitical constellation created by Russia’s invasion of Ukraine may have opened a “window of opportunity”. However, this is not (yet) perceived as a chance for change in BiH (and elsewhere in the Balkans).
3. The consequences of the Kovacevic judgment of 29 August 2023:
The recent Kovacevic-decision adds to the Sejdic-Finci caselaw on passive rights in elections, i.e. candidacy, in addressing the exclusion of active voting rights due to ethno-territorial limitations. Thus, its significance goes well beyond electoral rights and the electoral system and touches upon the entire power-sharing system. In fact, according to the ECtHR the “Current arrangements rendered ethnic representation more relevant than political or other representation and thus amplified ethnic divisions”. The Court clarifies that the concepts of “constituent peoples” and “minorities” are to be distinguished, with non-dominance being the criterion for this distinction and, at the same time, the ratio of minority rights in democratic societies. In fact, without special arrangements, the minorities’ voice may not be heard. But also, the opposite is true: dominant groups do not need protection.
But the current combination of the ethnic and territorial principles in BiH is not even in line with Dayton, as the control of territory by one dominant ethnic group is to be avoided: this was the main concern in the Constitutional Court case BiH U 5/98-III, 2000 (“constituent peoples”). In this judgment the Constitutional Court emphasized the dynamic part of the DPA, the annex on minority returns, in order to contrast the consolidation of forced homogenization or even “ethnic cleansing”). The disentanglement of the two dimensions (ethnic and territorial) in the institutional set-up and the reduction of the importance of the ethnic principle were considered necessary already by the Venice Commission, in its Opinion on the constitutional situation in BiH, in 2005.
The Kovacevic-decision is further developing the approach followed by the ECtHR and the Venice Commission, based upon the principle of proportionality: arrangements which could be justified immediately after a war, may not be permanent or become entrenched when general conditions have improved. Again, the question is when does transition end?
4. General questions and some answers in European and comparative law:
In Europe, different models of “diversity management” co-exist (Joseph Marko). With regard to legal recognition and treatment of diversity, there are two ideal types: liberal, “agnostic” States (such as France, a State of “citizens”) and “promotional” States (such as Italy, with a differentiated minority rights-regime).
At European level, standards in “minority protection” do exist. There are, in particular, the Council of Europe’s Framework Convention on National Minorities and the European Charter on Regional and Minority Languages. Both are binding, but not directly applicable treaties. They are integrated by the soft-law Recommendations of the OSCE High Commissioner on National Minorities. Together, these provide useful indications for guaranteeing the rights of non-dominant groups (to be implemented by the States).
However, there is no European blueprint for building a State in which two or more groups have a co-dominant position. But: „Although constitutional traditions and contexts differ, all CoE member states are committed to the inclusion of all their citizens in decision-making processes and to the development of an inclusive and cohesive society, with full respect to the principle of non-discrimination.”
Thus, in all situations, the “effective participation in public life” is key: It is an expression of the democratic principle and also a fundamental guarantee in art. 15 of the Framework Convention on National Minorities, i.e. special guarantees of complementary character for members of minorities in the political process in order to compensate for their small(er) number. States enjoy a wide margin of appreciation, but limits are exclusion (to be avoided) and electoral freedoms (to be guaranteed).
States also enjoy considerable margins of appreciation in organizing, e.g. the representation of groups in the institutional sphere: while proportionality is a frequent standard (also in the public administration, combined with merit criteria), over-representation of small groups is common, and parity may apply to certain positions of symbolic value (e.g. rotation principle for Assembly Presidents). However, in order to avoid exclusion, often the diversity of office holders is guaranteed (through provisions requiring, in abstract, that office holders be from different groups) rather than prescribing their ethnic affiliation with denomination as this would again lead to exclusion.
It also appears that generally Power Sharing systems are in crisis, as also other experiences suggest (in Europe, e.g. Northern Ireland, and elsewhere, e.g. Lebanon). An important problem of these arrangement is how the underlying political compromises can be made compatible with legal guarantees (in particular, where binding international Treaties are concerned, such as the European Convention on Human Rights). This can be achieved only by their evolution.
5. Implementation? Open Pandora’s Box!
The experience so far suggests that implementation will not happen any time soon. Reforms are legally necessary (violations of rights), but in the current situation they seem politically impossible.
The judgment opens the fundamental question of the nature of the State of BiH. The status quo entrenches a cold-war mentality as well as the domination of ethno-nationalist parties who control the institutions. Instead, a balance between the past, the present and the future is needed. Which are the foundations of the State, which rights do citizens enjoy, how are the institutions legitimated and organized, what can, and shall they do, and what is the ‘mission’ of the State? Any answer needs to be pragmatic and start from the citizens and their needs and rights, as well as respect diversity in order to create an inclusive society. This may include certain guarantees for groups, for specific areas of particular concern (which need to be defined). While the concrete suggestions in the Kovacevic judgment are no construction plan for building the institutions for an inclusive society in BiH, they are to be respected as limits and guarantees of a fully democratic society.
The follow-up question is how to implement the judgment(s). Are “improvements” to the Dayton Constitution, i.e. incremental changes, sufficient, or has the time come to end BiH’s constitutional transition with a “Dayton II” (or better “Bosnia and Herzegovina 2.0”)? The judgments suggest that minor corrections will not suffice. An inclusive and participatory process needs to be started, which is strongly supported by the International Community, in particular the US and EU (in a coordinated manner). The current geopolitical and regional situation needs to be carefully considered. In case the Dayton Constitution were to be substituted and not only amended, the signatory States or their successor (Croatia and Serbia) would need to be involved at the end taking note of the evolution.
But it needs to be clear that only Bosnians themselves can end their country’s constitutional transition by democratically adopting important amendments or a new constitution. A sustainable and inclusive State can only be created on their consensus.
Presentation for Krug 99, 17 September 2023, Jens Woelk, University of Trento (Italy).
Adil Kulenovic, President of “Circle 99” (“Krug 99”)
|Association of Independent Intellectuals – Circle 99 (Bosnian: Krug 99), a leading Bosnian think-tank, was established in Sarajevo in 1993, in the midst of the Bosnian war (1992-1995), while the capital was under siege. Circle 99 provides a platform to bring together intellectuals of various professional and ethnic identities; university professors, members of the Academy of Sciences and Arts of Bosnia and Herzegovina, artists, journalists, entrepreneurs, diplomats, and other prominent figures from Bosnia and from abroad. Multidisciplinary discussions and initiatives are held each Sunday throughout the academic year, in the form of regular sessions about politics, science, education, culture, economy, and other societal issues. The overall goal is to sensitize the public towards a democratic transformation, achieving and maintaining peace, and integration of modern Bosnia into the community of countries fostering liberal democracy. Circle 99 has been declared an organization of special significance for the city of Sarajevo.
 CoE Committee of Ministers, Reply (CM/AS(2008)Rec1735-final, 22 February 2008, para. 8) to “The concept of “nation” – Parliamentary Assembly Recommendation 1735 (2006): (https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016805d415c)