The International Institute for Middle-East and Balkan Studies (IFIMES) in Ljubljana, Slovenia, regularly analyses events in the Middle East and the Balkans. Dr. Miro Cerar, professor at the Faculty of Law of the University of Ljubljana and adviser on constitutional issues at the National Assembly of the Republic of Slovenia, presents his views of the proposed constitutional amendments which were submitted to the Parliamentary Assembly of BiH for discussion and adoption by the Presidency of Bosnia and Herzegovina on the basis of an agreement concluded by seven political parties (SDS, SDA, HDZ, SDP, SNSD, PDP and HNZ).

Dr. Miro CERAR
- professor at the Faculty of Law, University of Ljubljana
- adviser on constitutional issues at the National Assembly of the Republic of Slovenia

BOSNIA AND HERZEGOVINA AT THE CROSSROADS?

An obligation and at the same time an opportunity for a general revision of the Constitution of Bosnia and Herzegovina represent a significant political as well as legal (constitutional) challenge for this state. The politicians, legal and other experts as well as the citizens are standing at an important crossroads. One road follows the direction of ensuring the institutions typical of the western-type democracy and, thus, of the constitutionalism and the rule of law, while the other road leads to the institutional preservation of the pre-modern society, i.e. the state where the law and politics are a means of constant – concealed or open – fight for the predominance of one ethnic community over another. In more simple terms, the first road leads into (further) implementation of the values and practices which are gaining ground for example in the framework of the European Union, while the second road leads into relative isolation of Bosnia and Herzegovina and, in the long run, even into its gradual legal (constitutional) and political decay. In the long-run there is in reality no middle road (or it is merely a fictive one) since the civilisational directions of the European and global development as well as the cultural, religious, political, ethnic, geographical and other factors place Bosnia and Herzegovina at a geostrategic turning point where it has to decide in which direction it would go. Looking for the middle road or postponing the decision would actually imply taking the second road. The fact that this time Bosnia and Herzegovina can take a major part of its destiny into its own hands is on one hand an important emancipatory moment in the development of the state and its citizens, but on the other hand it represents a great historical responsibility and puts its political and intellectual elites at a test.

Under such circumstances a fast constitutional discussion which lacks the transparency can be very harmful in the long run. The issues that are concealed in the constitutional debate and resolved "in haste" within a narrow political circle or even by misleading the public have negative repercussions in the future. A (democratic) constitution of a relatively good quality should provide for the values as well as political and legal institutions which comply with the prevailing political and legal consciousness and the desires of the great majority of the citizens. An increasingly heated, critical and polemic debate on the constitutional amendments which is taking place in Bosnia and Herzegovina should therefore be understood as a natural and expected (democratic) process in the current situation. What is more, the process can not be stopped by force, or else various political and other players may perceive the constitutional amendments as something that has been imposed on them which is the worst possible farewell to the first independent constitutional project of this young state. Although one can not draw parallels between the EU (and its member states) and Bosnia and Herzegovina (and its "entities"), the failed (or at lease "postponed") project of adopting the "European Constitutional Treaty" (Treaty Establishing a Constitution for Europe) can, at least on principle, serve as a good example and an indicator of the inefficiency of hastiness in adopting an important constitutional document. Of course, this does not mean that a fruitful constitutional discussion always has to be a long one. What it means is that all the basic contents of the proposed amendments should be examined in the light of the responses of the professional and general public in order to ensure the necessary political and social legitimacy. However, it is of key importance not to deviate from the fundamental (democratic) goals of such constitutional revision.

If the basic aim of constitutional amendments in Bosnia and Herzegovina is (and should be) to increase the democratic standards and, as a result, to access and subsequently join the European Union, the constitutional revision must on one hand ensure a more efficient and democratic functioning of the basic institutions and on the other hand preserve and upgrade the mechanisms for efficient protection of the fundamental human rights and freedoms. If we focus primarily on the first and most topical aspect which includes the constitutional reform of the structure and the functioning of the supreme authority in Bosnia and Herzegovina, the key question is obviously whether it is possible to ensure further democratisation of the system and at the same time preserve or even strengthen the power of constitutional entities. The answer to that question can only be negative. The entities namely have an excessively disabling effect on the democratic processes which already require a relatively long period to be introduced and established. That does not mean that the entities should be abolished (which would also be completely unrealistic). What is important is that in some key aspects of the functioning of democratic institutions the entities give way to the principle of general representativeness.

Moreover, in case of Bosnia and Herzegovina we are talking about a specific situation in which the principles of democracy (majority decision-making on the basis of the general representativeness principle and the protection of fundamental human rights and the rights of minorities) and efficiency (timely adoption of appropriate decisions with majority support) do not contradict each other, which is, at least to a certain degree and in the short run, a feature of the steady democratic (parliamentary) systems. In the latter system a higher level of democratisation in the form of public and parliamentary discussions etc. at least partly disables the timely adoption of important political and legal decisions (the predominance of the democratic principle is of course more socially accepted in the long run). In case of Bosnia and Herzegovina, a higher level of democratisation in the above sense of the word which implies a reduced role of the entities and an increased role of the principle of democratic representativeness in the decision-making at the state level (whereby, of course, human rights and the rights of minorities should be constitutionally and judicially protected) would lead to a much better efficiency of the political and legal (constitutional) system. The entity decision-making is usually incompatible with the modern democratic parliamentarism, except when it is specifically aimed at correcting the general representativeness principle, e.g. in the form of parity or proportional composition of the lower chamber of the parliament. The constitutional question of the entity structure and entity principle of decision-making within the highest national bodies (especially the Parliamentary Assembly) is of key importance for Bosnia and Herzegovina and for its existence as a uniform and sovereign state.

Although the proposed amendments to the Constitution of Bosnia and Herzegovina bring some democratic and productive solutions for the development, their value is only relative and to a great extent completely diminished when taking into account the fact that under those amendments the adoption of the decisions by the House of Representatives which usually decides on the most important national issues (Amendment II, Article IV, paragraph 7) would be completely blocked with a veto imposed by the entities. This possibility is especially enabled by the provision according to which the House of Representatives can not adopt a decision if at least two thirds of the members selected from each entity vote against it. (Amendment II, Article IV, paragraph 9/e). That and some other provisions (e.g. on the presidency elections – Amendment III, Article V, paragraph 2) only further confirm the fact that the amendments lay down the entity decision-making in the Parliamentary Assembly which means that the ethnic and national principle may prevail over the principle of democratic representativeness. Moreover, with the parity entity composition of the House of Nations (which would be an acceptable solution in itself, but in combination with the entity principle in the Parliamentary Assembly it means a model which is incompatible with the modern democracy), and especially with the right of the constitutive nations of Bosnia and Herzegovina to veto in order to protect the vital national interests (in which case the Constitutional Court is appropriately envisaged to decide on the justifiability of the veto used to assert such interests) it becomes clear that such constitutional amendments contain several impediments and limitations and as such do not enable the achievement of the goals they are supposed to achieve (i.e. higher level of democratisation, tolerance, stability and efficiency of the system etc.).

Without dealing with other aspects of the proposed constitutional amendments which also include some constructive solutions, it can be concluded that it would be reasonable to continue the constitutional debate in Bosnia and Herzegovina and to reconsider the proposed solutions. Such reflection should be conditional on a more clear position on what is the real goal of the constitutional amendments. Is it a modern, emancipated, democratic and legal state with the relatively efficiently functioning institutional system, or further weakening and division of Bosnia and Herzegovina in which the ethnic and other specific players and factors dominate at the detriment of the efficiency of the whole? Hopefully that question is merely rhetoric, since in our opinion there is no middle or "third" possibility.

Ljubljana, 25 April 2006

Internationale Institute for Middle-East
and Balkan Studies (IFIMES) – Ljubljana

Director: Bakhtyar Aljaf