bosnia report
No. 13 January - 1996
 
IV. Constitutional Provisions
by Signed in Paris on 14 December 1995

IV. Constitutional Provisions
(Annex 4)

Upon signature of the Dayton Accords, the Constitution is to enter into force as a constitutional act amending and superseding the Constitution of the Republic of Bosnia Herzegovina. A Joint Interim Commission, chaired by the High Representative and including four representatives of the FBH, three of the RS and one of BH, is to discuss practical questions related to the implementation of the Constitution.

Bosnia-Herzegovina is to be the legal continuation of the Republic of Bosnia-Herzegovina. It is to consist of two Entities, the Federation of Bosnia-Herzegovina (FBH) and the Republika Srpska (RS). The Entities are to be invested with all powers not expressly assigned to the central government. However, the central constitution is to supersede inconsistent provisions of Entity constitutions, which are to be amended accordingly within three months. The Entities are also to be allowed to form 'special parallel relationships with neighbouring states consistent with the sovereignty and territorial integrity of Bosnia-Herzegovina.' The Constitution does not specify whether such relationships are to be deemed inherently consistent with BH's sovereignty and territorial integrity. In addition, no mention is made of BH's political independence

The responsibilities of the central government are to be : foreign policy; finances for central institutions and international obligations of BH (the FBH is to provide two thirds of the revenues required for the central budget and the RS one third, although neither taxation nor other mechanisms or procedures are specified); immigration, refugee and asylum policy and regulation; international and inter-Entity criminal law enforcement, including relations with Interpol; establishment and operation of common and international communications facilities; regulation of inter-Entity transportation; and air traffic control.

The central government is to include an elected Parliamentary Assembly (PA), Presidency, an appointed Council of Ministers (CM) and Constitutional Court. The PA is to have responsibility for, inter alia, deciding upon the sources and amounts of revenues for finances as mentioned above, approving a central budget, and ratifying or rejecting treaties. The Presidency is to have responsibility for, inter alia, conductiÌÌÌÌÌÌÌ̼ng the foreign policy of BH, appointing BH ambassadors and other international representatives (not more than two thirds of whom are to be selected from the FBH), negotiating BH treaties and executing decisions of the PA. The CM is to be responsible for carrying out the policies and decisions of the central government in the fields listed above The Central Bank is to have the sole authority to issue currency and determine monetary policy throughout BH.

The PA is to consist of two chambers: the House of Representatives (HR), and the House of Peoples (HP). Each chamber is to be chaired in rotation by an ethnic Croat, Serb and Bosniak 17. The HR is to consist of 42 members, with two thirds (28) directly elected from the FBH and one third (14) directly elected from the RS. A majority of Members is to constitute a quorum. The Presidency is to consist of an ethnic Croat and a Bosniak directly elected by the FBH, and an ethnic Serb directly elected by the RS,. Voters in the FBH would vote for only one candidate. Each member of the Presidency is to have 'civilian command authority over armed forces', but the Constitution does not provide for unified civilian command over the military. The Constitution provides for a 'Standing Committee on Military Matters'. selected by and including the three Presidency members. The Committee is to 'coordinate the activities of the armed forces' in BH. However, neither the precise nature of the Presidential authority over the military nor the relationship between individual Presidency members and distinct armed forces is specified 18. Where ethnic criteria for membership are indicated above, persons not of that ethnicity are to be prohibited from membership. Neither the Constitution nor the Accords define roles for citizens of mixed ethnic heritage.

The Presidency is to appoint the Chairperson of the CM, who would then appoint Ministers - no more than two thirds of whom are to be from the FBH - and Deputy Ministers, who are not to be of the same ethnic group as their Ministers. The HR is to approve of all appointments. The CM is to resign, if the PA passes a vote of no-confidence. The Constitution does not distinguish between the procedures for such a vote and other decisions by the PA.

The Constitutional Court is to include nine judges. Four are to be appointed by the FBH, two by the RS and three - who are not citizens of BH or any neighbouring state - by the European Court of Human Rights (ECHR). After five years, the PA is to determine the manner of selection of the latter three judges. Decisions of the Court are to be final and binding. However, the Constitution does not specify how decisions are to be reached - eg. by simple or super-majority, or whether they are to be subject to ethnic or other veto (see below). The Constitution stipulates, however, that a majority of judges are to constitute a quorum and that the Court is to determine its rules of procedure by majority vote.

Central government decisions are to be subject to ethnic veto. Decisions for the PA are to require majority approval of both chambers, provided that two thirds of the Members or Delegates representing one of the Entities do not oppose it Also, if a majority of Delegates from any one ethnic group declares a decision of the PA contrary to a 'vital interest' of the group, a majority of Delegates of each ethnic group must approve the decision for it to pass 19. If a majority of delegates of any one ethnic group objects to the invocation of this veto procedure, a commission of three Delegates - one selected by the Delegates of each ethnic group - is to resolve the issue within five days. If such an agreement is not reached, the Constitutional Court is to take up the matter, but would be empowered only to address the question of procedural regularity of the invocation of 'vital interest' of his or her Entity, two thirds of the members of that Presidency member's ethnic group in that EntitÌÌÌÌÌÌÌ̼y's legislature may veto the decision. The HP may be dissolved by the Presidency or by the HP itself, provided that two thirds of the Delegates of at least two ethnic groups concur with the decision 20.

Under the Constitution, all 'competent authorities' are to cooperate with, and provide unrestricted access to, international personnel performing functions related to the implementation of the Accords and human rights monitoring mechanisms established for BH. In particular they are to comply with any order by the UN War Times Tribunal in accordance with Article 29 (which concerns extradition) of its statute. There are to be no controls of the international boundaries, and freedom of movement of persons, goods and capital are to be guaranteed. The European Convention for the Protection of Human Rights and Fundamental Freedoms is to have priority over all other laws. However, the Constitution does not provide for mechanisms to enforce compliance with any of these obligations.

The Constitution may be amended by the PA in accordance with the above procedures provided two thirds of the Members of the HR vote in favour of the amendment.

Marshall Freeman Harris & Stephen Walker
The Balkan Institute, Washinton · 22 December 1995

Footnotes

  1. 'Bosniak' is not defined in the Constitution but in common usage it refers solely to the Muslim citizens of Bosnia-Herzegovina.
  2. There are at least three recognisable armed forces in BH: the Army of Bosnia-Herzegovina (ABH), the Croat Defence Council (HVO) and the Army of Republika Srpska (VRS).
  3. Under this provision, an ethnic bloc constituting only 20% of the House of Peoples could veto the enactment of legislation by the central government.
  4. The HP elected in the first elections after signing of the Accords may not be dissolved.

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