Western Balkans and EU News
08.11.21 | Opinions

[Opinion] Here is what Bosnia needs


By Stipe Prlic, Zoran Jovanovic, Miro Lazovic and Nedzad Mulabegovic

Sarajevo, 08 November 2021, dtt-net.com - Changes to the highest legal act of a state – the Constitution, represent the most complex social political endeavor. In BiH, this process is even more complicated because it is an integral part of our constitutional legal order and the OHR, that is the “international community”, made up of representatives of the world’s most influential forces united in PIC, which do not have the same political views towards Bosnia and Herzegovina.

It is undeniable that the BiH Constitution must be changed. Amendments to the BiH Constitution are no longer a matter of will, desire or compromise of domestic political parties, but an international legal obligation of Bosnia and Herzegovina resulting from the final judgments of international courts adopted from 2007-2020., as well as judgmenta of the Constitutional Court and the Court of Bosnia and Herzegovina.

For more than two decades, our NGOs have held the position that all citizens of Bosnia and Herzegovina, that is, all nations and minorities must have equal rights and obligations on the territory of all of Bosnia and Herzegovina. This principle is contained in the Dayton Constitution of BiH, which also contains as its integral part the European Convention on Human Rights and Fundamental Freedoms, which is directly applicable and takes precedence over any other law in BiH.

The existing ethno-national concept in BiH, which is particularly exemplified through the role of the houses of peoples at the level of BiH and the entities, is unsustainable because the institutution of vital national interest is abused in most cases. This institution is mainly not used for the vital national interest of a people but for the “vital interests” of nationalist political parties. It also completely suppresses civil rights guaranteed by BiH’s existing Constitution, leading to complete ethnic segregation.

On the other hand, the practice showed that entity voting had a much more disastrous effect on BiH’s (non)development than protecting vital national interest. The main problem lies in the fact that Annex VII, that is, the return of expelled and displaced persons has not been completed and, therefore, we have a situation that the entity voting has simultaneously become the ethnic voting.

In February 2007, a verdict was delivered by the UN International Court of Justice in The Hague in the case of BiH vs. Serbia and Montenegro, which found Serbia responsible for not preventing genocide against Bosniaks in Srebrenica, and then a series of judgments by the European Court of Human Rights. The European Court of Human Rights is in five separate judgments (2009 in favour of Sejdic-Finci vs. BiH, 2014 judgment in favour of Azra Zornic vs. BiH, 2016 judgment in favour of Ilias Pilav vs. BiH, Samir Slaku vs. BiH, and 2020 judgment in favour of Svetozar Pudaric vs. BiH) found the BiH Constitution discriminatory, practically towards all BiH citizens, from all peoples and the Others , despite the guarantee of all the rights under the United Nations General Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms. It is important to point out that since 1st January 2009, the European Court of Human Rights has adopted 395 judgments against Bosnia and Herzegovina (BiH), with the lawsuits being brought by both individuals and groups. The ruling parties, even after more than a decade, have not implemented the verdicts.

The adopted judgments, which are obligatory for the state of Bosnia and Herzegovina, represent the international legal basis for amending the BiH Constitution. The ethnic principle has been imposed by the flagrant violations of all human rights, aggression, ethnic cleansing and genocide.

We have no ambition or pretension to propose concrete solutions or texts of constitutional amendments, however, we want to offer principles that should be the starting basis for drafting a proposal for amendments to the Constitution of Bosnia and Herzegovina. The principles should be minimal common denominator for all progressive political forces of BiH, which can be presented as a common interest to friendly states and signatories of the Dayton Agreement who are  jointly responsible for BiH’s state-of-affairs and the future. This primarily concerns the U.S. administration, which played a decisive role in establishing peace in our country 25 years ago. It is important to emphasise that in December 1995 we did not have judgments of the international courts.

In the context of what has been stated above, we propose the following principles for the changes to the BiH’s Constitution: 

  1. The elimination of systemic discrimination that is widespread throughout the constitutional regulation. The enumerated judgments of the European Court of Justice oblige the state to remove existing constitutional provisions because of which all citizens who do not declare themselves members of constituent peoples are denied elementary civil and political rights. Those rights are also denied to members of the constituent peoples if they do not live in the “appropriate” entity. Discrimination is widespread also on other bases, such as gender, religious affiliation, social status, level of education received  and so on.
  2. The entities in Bosnia and Herzegovina, as administrative forms, were established on the basis of the “facts on the ground” caused by the international armed conflicts and as such are overcome today, as stated by the Venice Commission in 2005, while the biggest problem in practice has been, it has been shown, the entity voting in the Parliamentary Assembly of Bosnia and Herzegovina. In its 2005 opinion, the Venice Commission states, at point 34: “.:. This veto, which in practice seems potentially relevant only for the RS, appears redundant having regard to the existence of the vital interest veto.”.
  3. Failure to implement final court judgments by international and domestic courts clearly shows that in BiH there is a suspension of the rule of law, and in this regard it is necessary to insert all needed amendments in the Constitution to establish the rule of law and ensure the full political independence of BiH’s judicial institutions. Four separate autonomous legal and judicial systems operate in Bosnia and Herzegovina – at the level of BiH, in both entities and in Brcko District of BiH. This leads to uneven and even conflicting legal solutions and uneven case-law, and thus to inequality of citizens. Therefore, constitutional solutions must be created so that this does not happen.
  4. Define the principle of sanctioning the denial of holocaust, genocide and crimes against humanity by the Constitution.

       5.  It is necessary to precisely determine the rights protected by the institution of Vital National Interest/National Veto in the legislative bodies of the State and lower levels of government. 

      6.  The amendments to the Constitution must specify the disabling of the paralysis of its institutions and affirm the civic character of society and the strengthening of a democratic state modelled on all  democratic states in Europe and the world.

The decisions on constitutional changes must be brought back into the institutions of the system, into the Parliamentary Assembly of BiH which will include the NGO sector in the debate, academia, the media and the widest circles of citizens.

Bosnia and Herzegovina has been a multiconfessional and multinational country for hundreds of years, where the riches of diversity have been an advantage. Unity of diversity is still in the most part the way of life in it today. Bosnia and Herzegovina’s constitution must contain it, promote it and enable it.

(About authors: Stipe Prlic is President Croatian People’s Council of BiH; Zoran Jovanovic is President Serb Citizens’ Council –  Movement for Equality in BiH; Miro Lazovic is President Forum of 1992-1996 Parliamentarians  and Nedzad Mulabegovic is President Council of the Congress of Bosniak Intellectuals)

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08.11.21 | Opinions