Deadline Looms For Bosnia To Reform Constitution

By Valerie Hopkins

A November 30 deadline is fast approaching for Bosnia and Herzegovina to implement a 2009 European Court of Human Rights decision on eligibility for high office.

But the country’s dominant parties seem no closer than before to agreeing a set of viable constitutional amendments

The deadline refers to the December 2009 “Sejdic-Vinci” verdict by the European Court of Human Rights, which ruled that Bosnia’s constitution violates international law because it bars ethnic minorities from running for major state posts.

An “ad hoc” parliamentary commission was then set up to draw up a set of proposed amendments for the State Parliament to vote on by the end of this month.

The commission met for its penultimate meeting last Wednesday but failed to draft a full set of amendments.

Failure to implement the decision almost exactly two years after it was handed down may have implications for Bosnia’s membership of the Council of Europe.

“The Sejdic-Finci verdict is not like 90 per cent of Strasbourg verdicts, which deal with prison reform or lengthy case proceedings,” the Council of Europe’s Sarajevo Office head, Mary Ann Hennessey, told Balkan Insight.

“It goes to the very heart of the legitimacy of democracy, and it is only on the basis of legitimate democracy that a country can be a member state,” she added.

Hennessey says she hopes the commission will hand a set of proposals to the State Parliament even if they are submitted past the deadline.

But she says continued failure to implement the Sejdic-Finci verdict is not the only matter now calling Bosnia’s membership of the Council of Europe into question.

“There is also the continuing fact that Bosnia is barely present in the Council of Europe,” she said.

“It is hard to imagine that the [membership] question won’t arise as we get to the 10th anniversary, of whether Bosnia wants to be a member and whether it will continue to be one.”

She recalled the vanished optimism felt back in 2002 when Bosnia joined the body.

“Membership signified a real hope and expectation for the future in Bosnia: that it would be built on rule of law and human rights and lead towards further European integration,” she noted.

“Ten years later, can we still have those kind of thoughts? These questions are being generated not in the CoE but here in Bosnia and Herzegovina.”

Bosnia’s current constitution was delineated by the 1995 Dayton Peace Agreement, which ended the 1992-1995 war in Bosnia.

It established a tri-partite presidency rotating between an ethnic Croat, a Bosniak [Muslim] and a Bosnian Serb, effectively barring members of the country’s 17 national minorities, known in the constitution simply as “the others”, from full participation in political life.

Hennessey said that amendments could be made ready at “in an hour” but that the country’s sparring parties lacked the political will to agree on a set of proposals.

The dominant parties are willing to compromise on the composition of the legislature but remain divided over whether members of the presidency should be elected directly from one of the two political entities, or indirectly by the parliament.

Similar bickering has kept the country without a State Government more than 13 months after general elections.

Kurt Bassuener, a political analyst with the Democratization Policy Council, told Balkan Insight that despite the long process, he worries the committee will not settle on a concrete, agreed set of amendments to present to parliament.

“I fear the commission will send a series of partisan options”, he said, obviating the purpose of the committee, which was to reach a set of concrete amendments to be voted in or down by parliament.

If and when a decision on Sejdic-Finci is reached, it will just be the first step in a lagging constitutional reform process that Western officials say must be undertaken to bring a much-needed degree of functionality to the State Government.

To pass a law in the Federation of Bosnia and Herzegovina, one of the country’s two autonomous entities, “is inexplicably complex”, Muhamed Mujakic, a legal expert with the Bosnian Law Institute, said.

“Such a law must be harmonized by [the Federation’s] ten cantons. The current structure will keep us away from the EU forever,” he added.

Bassuener agrees. “It’s a mistake to even consider this ongoing process ‘constitutional reform’ insofar as the issue is compliance with the European Court ruling, and not improving government functionality,” he told Balkan Insight.

“No matter how this committee works and how parliament votes, constitutional reform in that real sense will be no closer,” he added.

Bassuener says despite the rough climate in the commission, the international community will probably interpret the result of the December 1 meeting as forward motion, whether or not it actually represents change.

“Unfortunately, the very concept of constitutional reform has been hollowed-out and the international community is so desperate for anything they can label progress that for many of them, ‘constitutional reform’ is now synonymous with Sejdic-Finci implementation,” he lamented.

“While it will require constitutional amendment, the ghost in the machine, the perverse incentives in the Dayton system, will remain unaltered,” he concluded.