The constitutional debate in Bosnia-Herzegovina
by Zlatko Hadžidedic
A constitution, by its essence, is a civic act. As such, it is not made for promotion or furthering of ethnic, religious, tribal or class divisions in society. As such, a constitution is made for, and by, citizens, who constitute themselves as free and equal, irrespectively of their ethnic, religious, tribal, or class identities.
However, Bosnian constitutions – past and present – have never met this simple criterion. Rarely made by Bosnians themselves, Bosnian constitutions have never recognised Bosnian citizens as free and equal, irrespectively of their ethnic, religious, tribal, or class identities. On the contrary, these Bosnian constitutions have only recognised Bosnians as divided into separate ethno-religious camps, not recognising their common Bosnian identity, and hardly even recognising their common Bosnian citizenship (the concept which in Bosnia, and probably only in Bosnia, paradoxically, has never been treated as equivalent to the concept of nationality). Thus Bosnian constitutions, again paradoxically, have never been designed or functioned as civic acts.
It has already become a commonplace to say that Bosnia-Herzegovina is an ‘ethnically divided society’. However, it has never been examined to what extent its constitutional models – both current and past – have played a major role in promoting and furthering such a division. Any constitutional model that endorses ethnic division as its fundamental principle inevitably perpetuates ethnic division on the societal level, thereby structurally and institutionally pushing society’s members into separate ethnic camps. Such a model is not ‘made for dealing with ethnically divided societies’ – it is made for furthering and fixing ethnic division in society.
In the failed [B-H] constitutional amendments, proposed not so long ago by the US Institute of Peace, no exception to this rule can be found. Yet, most of the constitutional solutions proposed to amend the so-called Dayton Constitution (which is, actually, only Annex 4 of the Dayton Peace Agreement and has never been ratified as a proper constitution by the Bosnian Parliament!) are actually far from 'cosmetic', as frequently claimed. On the contrary, most of the proposed amendments are extremely destructive for the sovereignty and integrity of Bosnia-Herzegovina and may easily lead to its final dissolution.
The most dangerous contradiction in the proposed amendments is their failure (which they share with the so-called Dayton Constitution, to which they were meant to be added) to explicitly acknowledge that sovereign powers must be originally set on the level of the state, rather than be transferred from the so-called entities to the state. For if original sovereignty is not recognised on the state level and is only transferred from the entities to the state, it essentially generates an inter-entity agreement, rather than a state constitution. And then a constitutional document in which original sovereignty belongs to the entities cannot lawfully be adopted by the Parliament of Bosnia-Herzegovina (but rather only by the entity parliaments). This is the essential paradox of the so-called Dayton Constitution, and it could be resolved only through some kind of legal manoeuvre. Thus the legal manoeuvre to make the amendments adopted by the Parliament of Bosnia-Herzegovina was directed at bridging this legal gap and thus practically at verifying the so-called Dayton Constitution in the Parliament, without removing its basic contradiction, the one which makes it inappropriate as a proper state constitution and which makes it function as an inter-entity agreement. And preservation of this contradiction through its verification in the Parliament could only lead to legal recognition of the inter-entity agreement under the cover of a constitutional document.
Transfer of sovereignty
In this way, through the Parliament's – planned but failed – adoption of the amendments, the actual inter-entity agreement, labelled as Annex 4, was in fact meant to be taken out of the Dayton Peace Agreement and formalised as a state constitution, including its potential to trigger the state's dissolution into two supposedly sovereign entities. Adoption of these amendments in the Parliament of Bosnia-Herzegovina thus might lead to a formally lawful dissolution of the country, which currently can not happen under the international guarantees of the Dayton Peace Agreement. For to take Annex 4 out of this international agreement and transform it into a seemingly valid constitution might lead to a dissolution that is not preventively addressed by such international guarantees. For, under such circumstances, Bosnia's sovereignty and integrity would be protected only by a seemingly lawful but totally flawed constitutional document (with no international guarantees whatsoever!), one that would actually legalise the full transfer of the state's sovereignty to its two entities and thus create legal preconditions for their eventual independence.
Thus, according to the amendments, which themselves further the logic of the so-called Dayton Constitution, the state itself is not constituted as sovereign. Nor are the Bosnian citizens constituted as sovereign. Only ethnic groups are sovereign, and sovereignty is limited to - and can only be exercised through - three fixed ethnic camps. The sovereignty of these camps is meant to be exercised through the Parliament’s upper chamber, the House of Peoples, and this House has sovereign power to veto (under the pretext of ‘protection of vital national interest’, which is a totally arbitrary category!) virtually all legislation that comes from the lower chamber, the House of Representatives, which – at least theoretically – represents the citizens’ sovereignty. In this way, it is ethnic groups (rather than citizens) which are granted sovereignty in any instance.
In one of its most destructive provisions the amendments propose: “In order to declare a provision not falling under the cited and defined national interest null and void, 2/3 of a caucus at the House of Peoples must declare such a provision damaging”. This provision makes it possible for literally any law to be declared damaging to ‘vital national interests’, should 2/3 of any ethnic caucus vote it so. Thus the functioning of the Parliament (i.e. ultimately of the entire state) can be stopped at any time, and kept under total blockage indefinitely, by a totally arbitrary decision of 2/3 of a single ethnic caucus, based on a totally arbitrary category of 'vital national interest'! And a permanent and total blockage of the state system leads to dissolution of the state, as was the case – for example – with the former SFR Yugoslavia.
Even without this veto principle, it is difficult to imagine that the bi-cameral Parliament, as designed in the amendments, can function at all, let alone as a legislative or representative body. For political caucuses in its lower chamber (the House of Representatives) are actually transformed into ethnic caucuses, by means of establishing caucuses of ethnic communities for the upper chamber (the House of Peoples) within the lower chamber (the House of Representatives). This already makes the very concept of bi-cameral parliament totally redundant and deprives it of any legal and practical sense. Besides, this ethnic pattern in the House of Representatives is a clear violation of the principles of individual representation and direct election. The members of the House of Representatives represent all sovereign citizens (i.e. the entire sovereign people) of Bosnia-Herzegovina, and any deviation from this principle is potentially very destructive for the sovereignty of the state. Moreover, if caucuses in the House of Representatives are designated as ethnically based, political parties which refuse to be ethnically defined are inevitably doomed, since they cannot have their own representatives in the House of Peoples, which is the chamber with the right to veto any decision of the other chamber. Eventually, the principle of ethnic caucuses makes political parties redundant (as representatives of citizens’ interests), since they become merely representatives of ethnic interests. Even a pluralism of ethnic parties becomes problematic, since the ethnic caucuses ultimately tend to become three monolithic ethnic parties, while all other non-ethnic political parties perish, and so on.
This makes the whole set of regulations on human rights highly questionable, since individual rights of (presumably sovereign) individuals are a priori reduced to collective rights of (actually sovereign) ethnic camps. According to the proposed amendments, the lower chamber of Parliament, the House of Representatives, can not represent citizens irrespective of their ethnicity or religion, since its members are not actually elected directly on the level of the entire state, but rather from the ethnically constructed entities. Moreover, the position of these members is totally fixed within this Chamber as ethnically defined by so-called ‘entity voting’. ‘Entity voting’ is a category totally unknown in constitutional theory and practice; it transforms the House of Representatives into a ‘House of Entities’, dissolving the country’s sovereign legislature – which represents its indivisible sovereignty – into two quasi-sovereign entity legislatures. And that, then, makes entity parliaments totally redundant, since they duplicate their existence on the level of the state Parliament. On the other hand, this means that voting in the state Parliament practically requires consensus between the entities, regardless of the principle that members of this House should represent individual citizens rather than ethnically based entities (and that they should vote individually, on the principle of majority, rather than on the principle of consensus). Of course, a consensus between the quasi-sovereign entities, which aspire to full independence, can rarely be reached on any issue relevant for the state’s sovereignty; and this principle provides a mechanism for permanent blockage of the Parliament and permanent deconstruction of the state’s sovereignty, which can be followed only by the state’s final dissolution. However, ‘entity voting’ is merely the ultimate expression of the general logic of both the amendments and the so-called Dayton Constitution, in which ethnic representation is – falsely – portrayed as a conditio sine qua non of Bosnia’s political and legal existence, and is multiplied at all levels and in all institutions.
This same pattern is also to be found in the proposed institution of the Presidency, which thus preserves ethnic sovereignty and ethnic representation as the only paradigms of political relations in Bosnian society. Instead of a single President, who would represent the sovereignty of the entire citizenry, it is proposed that a tripartite Presidency should represent the sovereignty of the three ethnic camps (already represented in Parliament anyway). Insisting on consensus and ethnic representation even within the institution of the government (Council of Ministers) pushes the logic of ethnic representation to the absurd, preventing the executive branch from proper functioning, which should be based on merit rather than on ethnic representation and ethnic reciprocity and mutuality. Giving more power to the prime minister, as specified in the amendments, could indeed strengthen the government’s power; but there is a constant risk that the government itself would function as yet another House of Peoples, permanently seeking consensus between the ethnic camps, and permanently being blocked due to the lack of it.
Thus these amendments, if ever transformed into a seemingly valid constitution, can only further stimulate the existing ethnic division of Bosnian society, already created by the so-called Dayton Constitution. Moreover, if ever applied in any form, these amendments will definitely legalise the ethnic partition of the country, which was created by the so-called Dayton Constitution, but which has never been legalised by the Parliament of Bosnia-Herzegovina. Since the so-called Dayton Constitution only temporarily suspended the (only legitimate) Constitution of the Republic of Bosnia-Herzegovina, some new constitution based on the logic of the proposed amendments would definitely abolish the latter, without any improvements in the structure and logic of the so-called Dayton Constitution.
Finally, quite contrary to the claims expressed by those who have been ruthlessly pressing for their adoption in the Parliament of Bosnia-Herzegovina, the overall spirit of the proposed amendments is totally opposed to the political positions on the future of Bosnia-Herzegovina expressed in last year's Opinion of the Venice Commission, in Resolution No. 400 of the US Senate, and finally in the recent Resolution of the Parliamentary Assembly of the Council of Europe. All these documents advocate the strengthening of civic democracy in Bosnia-Herzegovina. The proposed amendments strengthen instead the principles of ethnic partition of the country. Those documents advocate a single President to replace the tripartite Presidency; the amendments provide a new form of tripartite Presidency, whose members would rotate every 16 months instead of the current 8 months. Those documents advocate strengthening and making more effective the Council of Ministers; the amendments provide a new blocking mechanism requiring ethnic consensus for all its decisions. Those documents advocate unity and increased efficiency of all state structures; the amendments provide for an ethnically divided Parliament, both of whose chambers are formed on the principles of ethnic caucuses, each with the right arbitrarily to exercise the power of veto, and so on.
To conclude, these amendments and the entire public narrative advocating them, were an attempted – but fortunately, failed – constitutional fraud, and nothing else. Citizens of Bosnia-Herzegovina – those who define themselves as such, regardless of their ethnic backgrounds – have all rational arguments to reject these amendments and their partitionist logic of ethnic representation once and for all.
Text upon which Zlatko Hadžidedić based the talk he gave at the Bosnian Institute's monthly forum on 3 July 2006.