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).

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.

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.