The Bosnian Constitution: facing the EU integration process
In December 2022, the European Council granted Bosnia and Herzegovina EU candidate status. However, to pursue EU membership, Bosnia needs to implement decisive reforms. One of the major obstacles to meeting the membership criteria and moving towards the EU is the current constitutional setup, which is both dysfunctional and discriminatory.
The historical context
On 1st November 1995, the end of the war and the destiny of BiH were both quickly negotiated far away from Sarajevo, under the supervision of the international community, in Dayton, USA. The Peace Agreement, in which Annex 4 entailed the Bosnian Constitution, established the structure of the new BiH. Dayton divided Bosnia and Herzegovina into two ethnically based and highly autonomous entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. In 1999, the small autonomous district of Brčko was added. The Constitution established a tripartite Presidency and an internationally appointed authority: the High Representative, to oversee the implementation of the Agreement.
First of all, there was not a unitary “Bosnian people” in 1995. The Preamble of the Constitution recalls three ethnic groups – Bosniaks, Croats and Serbs – as constituent peoples, along with “Others”. Ethnicity plays a crucial role in every aspect of public life in the country. For example, to run for the Presidency or the Upper House of the Parliament, a citizen needs to be Bosniak, Croat or Serb. This provision infringes the political rights of about 400,000 Bosnian citizens about 12% of the population, who do not belong to any of the three constituent groups, refuse to identify ethnically, or do not meet the combination of requirements of ethnicity and place of residence.
Division along ethnic lines also reflects on the legislative process. The representatives of each ethnic group in the House of Peoples, the Upper chamber, and within the Presidency can resort to the power of a veto, when a proposed decision is considered to be “destructive of a vital interest” of the constituent peoples. The Basic Law also provides the so-called “entity veto”: in the absence of one-third of the votes of Delegates from the territory of each Entity, a law cannot be adopted. While minority veto might function in consociational legislatures, in Bosnia it is greatly misused and hinders the country’s governability. For instance, entity veto was invoked almost 400 times between 1997 and 2007. Legislative power also belongs to the High Representative, who can override an internal stall and impose legislation or even remove public officials from their offices.
Secondly, although the current Constitution came into force upon the signature of the Peace Agreement by the previously conflicting parties, it has never been the subject of public consultation or referendum. For some, this was an “undemocratic birth”1, which lacked the people’s vote. Others argued that the Basic Law was implicitly approved by the three peoples through their representatives who signed the Agreement. Nevertheless, the lack of public debate during the constitution-making process reflects upon the consensus around the “constituent pact”, namely the fundamental synthesis of different positions on whose basis the Constitution was written.
Carna Pistan notes that although the German Constitution was also internationally imposed, unlike the Bosnian Constitution we can see an attachment to norms and values of the democratic constitution (so-called constiutional patriotism). Conversely, in BiH, the pact crystallized the country’s ethnic partition and thus the opposing narratives of the past, rather than defining a shared system of values and memories. The history of the Bosnian conflict has not yet been agreed upon and different “truths” collide on these events, often degenerating into revisionism and denial of past genocide.
Obstacles to EU accession
Bosnia’s path towards the EU is not an easy one. Despite some difficulties, BiH managed to meet the requested standards in 2016 and submitted its application. In 2019, the European Commission identified fourteen key priorities that the country had to address so as to be granted candidate status. These include the implementation of the Sejdić-Finci ECtHR judgment as well as many others to amend the Basic Law and grant political rights to all the ethnicities. Not only is the Constitution an obstacle to its amendment, since it requires the consensus of majorities within all three constituent peoples, but political will is also absent. For example, the former Serb Member of the Presidency, Milorad Dodik, openly said in 2017 and 2018 that Sejdić-Finci reform “should not be carried out” since he no longer supported it. The Opinion also refers to the importance of reconciliation, underlining the need to fight revisionism and genocide denial. How can this be done, when the Constitution itself excludes a shared memory over the conflicting past?
What can be tried?
It is up for debate whether the constitutional ethnic partition or the absence of political cooperation is the major obstacle to constitutional amendment. As Joseph Marko suggests, there are other virtuous examples of ethnically divided governance systems within the EU and the Autonomous Province of South Tyrol is one of those. Through revisionism and genocide denial the problematic “negative consensus” built by ethno-nationalist parties lead to the breakdown of inter-ethnic cooperation. Thus, ethno-nationalist parties inserted themselves into the furrows drawn by the Constitution, consolidating daily ethnic partition to remain in office.
To break the vicious circle, pressure needs to be put on politicians from multiple sides: civil society, national multi-ethnic parties and the EU. This should encourage bottom-up approaches, presenting the EU as a safe space within which gradual participatory process could eventually amend the Basic Law.
As a result of this pressure, the political will to amend the Constitution is more likely to arise and may even open up space for a participated constitution-amending process, that would go beyond the legislative bodies. Thus, the reformed Constitution would protect all ethnic groups, while reflecting a certain degree of consensus around the “constituent pact”.
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