Constitutional reform in Bosnia and Herzegovina

The Constitution of Bosnia and Herzegovina was amended once, in 2009, to include the outcome of the Brcko District final award. Several constitutional reforms were attempted between 2006 and 2014, to ensure it compliance with the case law of the European Convention on Human Rights in the Sejdić and Finci v. Bosnia and Herzegovina and following cases (Zornic, Pilav) regarding ethnic- and residence-based discrimination in passive electoral rights for the Presidency and House of Peoples. None of these attempts have been successful so far, notwithstanding EU involvement and conditionality (between 2009 and 2014, constitutional reform was included as a precondition for the entry into force of the Stabilisation and Association Agreement between Bosnia and Herzegovina and the EU).

Procedure

In the Article X, defining the amendment procedure, the Constitution of Bosnia and Herzegovina states that it can be amended by a decision of the Parliamentary Assembly, including a two-thirds majority of those present and voting in the House of Representatives. The Constitution does not say who has the right, and under what rules, to present the amendments to the Parliamentary Assembly. Also, in the paragraph 2 of the Article X, the Constitution states that the rights and freedoms, as seen in the Article II, cannot be derogated, as well as the paragraph 2 itself.

Chronology of Constitutional reform attempts

Accession to the Council of Europe and 2005 Venice Commission Opinion

Bosnia and Herzegovina became a member of the Council of Europe on 24 April 2002, thus committing to honour the obligations of membership stemming from Article 3 of the Statute of the Council of Europe, as well as the specific commitments listed in the PACE Opinion 234 (2002) on Bosnia and Herzegovina's application for membership, including the need to strengthen State institutions in relation to the entities, and to align the text of the Constitution to the Constitutional Court’s decision on the “constituent peoples” case (U-5/98).

The PACE also tasked the Council of Europe's Venice Commission to assess whether the use of the High Representative’s "Bonn Powers" respected the basic principles of the Council of Europe, whether the Constitution of Bosnia and Herzegovina was in compliance with the European Convention on Human Rights and the European Charter on Local Self-Government, as well as to generally review the rationality and functionality of the constitutional setup of the country.

In March 2005 the Council of Europe's Venice Commission issued its advisory Opinion. The Venice Commission concluded that the Bonn Powers, although beneficial in the wake of the war, do “not correspond to democratic principles when exercised without due process and the possibility of judicial control”, and called for a “progressive phasing out of these powers and for the establishment of an advisory panel of independent lawyers for the decisions directly affecting the rights of individuals pending the end of the practice” (§100, p.24)

The Venice Commission also criticised the weakness of State-level institutions, left incapable to “effectively ensure compliance with the commitments of the country with respect to the Council of Europe and the international community in general”, as well as the overlap of competences between the Presidency and the Council of Ministers, the lack of specific limitations for the use of the national interest veto, the entity veto, and the House of Peoples as a legislature. The Venice Commission also noted how unusual it was that the Constitution has been “drafted and adopted without involving the citizens of BiH and without applying procedures which could have provided democratic legitimacy”, and concluded that it was “unthinkable that Bosnia and Herzegovina can make real progress with the present constitutional arrangements” (§3, p.3). It thus made a connection between the phasing out of international supervision and a constitutional reform process to strengthen the domestic institutions.

2006 April package

The 2005 Opinion of the Venice Commission, which coincided with the 10th anniversary of the Dayton Peace Agreement opened the debate on a constitutional reform in Bosnia and Herzegovina, on the impulse of US diplomacy, with a view of modernizing the country's institutions. U.S. diplomat R. Nicholas Burns stated that this would entail moving towards an individual presidency, a stronger prime minister, and a stronger parliament with a stronger speaker; reforms should have been adopted ahead of the 2006 elections. Bosnian leaders also agreed in a joint statement to commit to a process that “will enhance the authorities of the state government and streamline parliament and the office of the presidency”.

Ambassador Douglas L. McElhaney in Sarajevo and Ambassador Donald Hays in Washington led the U.S. talks with party leaders and the iniative to draft a compromise proposal for constitutional amendments, dubbed April Package (aprilski paket). Overall, the April Package would have better defined and partly expanded State competences, and streamlined institutions, partly limiting the veto powers of ethnic groups. The amended Constitution would have included:

• an individual President (with two deputies, one for each constituent people, to rotate every 16 months instead of 8), indirectly elected by the Parliament and with a more ceremonial role; the matters subject to consensus within the Presidency would have been reduced to only a few, including defence;
• a reinforced Chairman of the Council of Ministers, and the creation of two additiona ministries (for agriculture and for technology and the environment)
• the codification in the Constitution of the competences de facto acquired by the state level in the previous period (defence, security, intelligence);
• a new category of shared competences between State and entities (taxation, justice and electoral affairs);
• a specific provision for European integration that would have allowed the State level to assume the necessary competences from the entities ("EU clause");
• the codification of the newly-established State-level institutions (Court of Bosnia and Herzegovina, BiH Prosecutor’s Office, High Judicial and Prosecutorial Council, and Indirect Tax Authority)
• an enlargement Parliament:
  • 87 MPs (instead of 42) in the House of Representatives, including at least 3 “Others” (but “entity voting” would persist, with legislation approved if at least 1/3 of MPs elected from each entity would support it);
  • 21 MPs (instead of 15) in the House of Peoples indirectly elected from the House of Representatives rather than from the entities' Houses of Peoples. The competences of the House of Peoples would also be limited to Vital National Interest veto procedures.

At the moment of Parliamentary approval, the constitutional amendments failed by 2 votes, only gathering 26 MPs in favour over 42, instead of the required 42. This was due to the maximalist pre-electoral positions taken by Haris Silajdžić's SBiH party (wishing to abolish also entity voting) and by the HDZ 1990 splinter party, who felt the proposal did not sufficiently protect the Bosnian Croats. The U.S. would try to rescue the April Package by facilitating further talks in 2007 between Milorad Dodik (now in power in Republika Srpska) and Haris Silajdžić (now in the Presidency), but to no avail.

Following the replacement of OHR/EUSR Paddy Ashdown with Christian Schwarz-Schilling in late 2006, the latter aimed at promoting "local ownership" and fostering the closure of the OHR, including by finalising constitutional reform talks. Differently than the closed-door approach taken by U.S. diplomacy for the April Package, Schwartz-Schilling aimed to set up a “constitutional convention” to foster public debate and breack the monopoly of ethno-nationalist parties. He proposed a law-based constitutional commission, to be nominated by the BiH Parliament, with three co-chairs (a Bosnian intellectual and one each from the U.S. and the EU) and a technical secretariat composed equally of Bosnians and internationals. Although Germany was ready to finance it, the proposal was not welcomed by the EU Council (who deemed it too internationally-driven) and by the Commission (who was worried the initiative would complicate the ongoing talks around police reform). HDZ BiH also soon withdrew its support, and the initiative faded away in Summer 2007. Feeling a lack of confidence from Brussels, Schwarz-Schilling also resigned.

2009 Sejdić and Finci v. Bosnia and Herzegovina case

In 2009, the European Court of Human Rights ruled in Sejdić and Finci v. Bosnia and Herzegovina, a case filed by Dervo Sejdic and Jakob Finci, two Bosnian citizens of Romani and Jewish ethnicity, and are therefore ineligible for running for president. The court determined that this restriction (an estimated 400,000 Bosnian citizens, 12 per cent of the population, cannot run for president due to their religion, ethnicity, or place of residence) violates the European Convention of Human Rights. Four subsequent cases also found that the constitution is discriminatory. However, as of 2020 it has yet to be amended.

2008 Prud process

Constitutional reform talks restarted in 2008, after the end of the police reform process and the local elections. On 8 November 2008 the leaders of the three main national parties (Milorad Dodik for the SNSD, Sulejman Tihić for the SDA and Dragan Čović for the HDZ) signed a joint agreement in Prud stating their aim of harmonising the Bosnian Constitution with the European Convention on Human Rights, to clarify state competences and establish functional institutions, and to reorganise the middle layers of governance, including settling the legal status of Brčko. The Prud statement also explicitly called for amendments to be drafted with the expert assistance of international institutions.

Despite monthly meetings of party leaders, the "Prud process" did not lead to a compromise on territorial reorganisation, as Tihić (and Čović) saw the talks as a way to abolish the entities with four non-ethnic regions, while Dodik aimed to entrench the right of Republika Srpska to secede after a three-year period. Dodik also started to further challenge the OHR and call for the repatriation of competences to the entities, relying on the growing support of Russia.

The only concrete result, upon U.S. pressure, was the agreement to amend the BiH Constitution to incorporate the Brčko District under the jurisdiction of the state institution and of the Constitutional Court, as had been settled by the Brčko arbitration process.

2009 Butmir process

A renewed push for constitutional reforms came in late 2009, in view of the upcoming Sejdić and Finci ruling of the European Court of Human Rights and of the 2010 election, despite diverging views between U.S. and EU actors. U.S. and EU organised a retreat at the Butmir military base outside Sarajevo on 9 October 2009, attended by U.S. diplomat Jim Steinberg, EU Commissioner Olli Rehn and Swedish foreign minister (and former OHR) Carl Bildt for the EU Council presidency. The Butmir draft aimed at taking over most elements of the April Package, as well as including a specific paragraph (§6a) clarifying that only the state of Bosnia and Herzegovina could apply for membership in international organisations, and that it was empowered to assume competences from the entities to that aim. Yet, domestic consensus proved elusive, as each of the parties was stuck on maximalist positions. The draft was deemed too centralistic for the SNSD and HDZ BiH, and not enough for SDP and SBiH. Only SDA was explicitly in favour. After two fruitless sessions, the talks were ended right before the European Court of Human Rights issued its Sejdić and Finci ruling in November 2009.

Entity-level constitutional reforms

Federation of Bosnia and Herzegovina

In parallel to EU-facilitated talks on the Sejdic-Finci issue at State level, in February 2013 the US embassy supported an expert working group which presented its 188 recommendations to the FBIH House of Representatives in 2013, aiming to address the costly and complex governance structures with overlapping competences between the Federation, the Cantons and the municipalities as currently entailed in the Federation Constitution. The initiative was finally not adopted by the Parliament.