The New Constitution of Bosnia and Herzegovina

II. Nation-building Aspirations

If the origin of the new constitution causes one some unease, the nation-building framework set up by it gives one mixed feelings. The new constitution aspires to preserve and continue Bosnia and Herzegovina as one nation under international law,³⁰ while recognising the essential consequences of the infamous war. To that end, the new constitution defines citizenship, guarantees human rights, promotes democracy and a market economy, sets up national institutions and grants them certain powers, and establishes a legal system. However, it is questionable whether it has given these institutions the necessary muscle required for the task of building one nation.

A. The Federal Structure

The structure of the nation that the new constitution attempts to build upon the remains of the protracted war may be best characterised as federal. This is evident in its internal composition and the allocation of power between the national institutions and the component Entities.

The new constitution recognises or legitimises the existing consequences of the war³¹ by establishing two militarily independent territorial components within Bosnia and Herzegovina, although it does not itself demarcate the boundaries of these two Entities, which was done by other parts of the Dayton Peace Agreement. Article I(3) states that "Bosnia and Herzegovina shall consist of the two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska." Another provision mandates that "under no circumstances shall any armed forces of either Entity enter into or stay within the territory of the other Entity without the consent of the government of the latter and of the Presidency of Bosnia and Herzegovina."³² As a result, the military conquests by the Bosnia Serbs are solidified, and the military independence of each Entity assured.

In addition to the military independence of the component Entities, each also enjoys almost complete autonomy in its own internal governance. Each Entity regulates its own citizenship.³³ The new constitution grants only limited powers³⁴ to the national institutions and beyond these explicit grants of power, the new constitution decrees that "[a]ll governmental functions and powers not expressly assigned in this Constitution to the institutions of Bosnia and Herzegovina shall be those of the Entities."³⁵

Furthermore, each Entity also has certain foreign relations power which a constituent component in a federal nation normally does not have. First, the "Entities shall have the right to establish special parallel relationships with neighbouring states consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina."³⁶ Second, "[e]ach Entity may also enter into agreements with states and international organisations with the consent of the Parliamentary Assembly. The Parliamentary Assembly may provide by law that certain types of agreements do not require such consent."³⁷ It is not clear whether "special parallel relationships with neighbouring states" require approval of the Parliamentary Assembly. On the one hand, because one provision explicitly states that approval of the Parliamentary Assembly is required while another is silent on this point, one may argue that when the provision is silent no approval is required. On the other hand, one may also contend that the provision requiring approval is a general provision and the other provisions are to be interpreted in light of the general provision, and thus all agreements with another State, in whatever form, must be approved by the Parliamentary Assembly. Nor is it clear what constitutes "special parallel relationships with neighbouring states consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina," which may have to be ultimately decided by the Constitutional Court.

B. Core Values of the New Nation

On the foundations of the federal structure, the new constitution attempts to build a new nation with several core values. It defines Bosnia and Herzegovina citizenship.³⁸ It enshrines democracy, although its origin is not a model of democracy. Article I(2) states that "Bosnia and Herzegovina shall be a democratic state, which shall operate under the rule of law and with free and democratic elections." It puts human rights on a pedestal.³⁹ Article II(1) states that "Bosnia and Herzegovina and both Entities shall ensure the highest level of internationally recognised human rights and fundamental freedoms." The new constitution provides that certain rights and fundamental freedoms "shall have priority over all other law,"⁴⁰ and that an amendment may not affect these rights adversely.⁴¹

Freedom of movement will be guaranteed. Article I(4) states, "There shall be freedom of movement throughout Bosnia and Herzegovina. Bosnia and Herzegovina and the Entities shall not impede full freedom of movement of persons, goods, services, and capital throughout Bosnia and Herzegovina. Neither Entity shall establish controls at the boundary between the Entities."

C. National Powers and Institutions v. Entities' Powers and Institutions

The new constitution establishes a national government with limited and enumerated powers. These powers relate to (a) foreign relations, i.e., foreign policy, foreign trade policy, customs policy, immigration, refugee, asylum policy and regulation, international criminal law enforcement, international communication facilities and air traffic control; (b) inter-Entity relations, i.e., inter-Entity criminal law enforcement, common communications facilities, inter-Entity transportation, and finances of the national institutions; and (c) national economy, i.e., currency issuing authority and monetary policy.⁴² All other powers belong to the Entities, although the Presidency may decide to facilitate inter-Entity co-operation unless an Entity objects.⁴³ This no doubt will serve as a principle of interpretation mandating that the national powers be interpreted strictly.

Another important national feature is the pre-emptive power of national law. The new constitution places the new constitution and decisions of the national institutions on the top of the hierarchy of law and provides that contrary laws and decisions of the Entities be pre-empted.⁴⁴ National law and decisions of the national institutions of course must yield to the new constitution.⁴⁵ The new constitution also mandates that "[t]he general principles of international law shall be an integral part of the law of Bosnia and Herzegovina and the Entities."⁴⁶ The effect of this mandate is not clear because it does not specify the position of these principles of international law in the legal hierarchy. Different theories to be applied by the courts may result in different outcomes.⁴⁷ The new constitution does not directly address the hierarchical status of treaties except that it provides for the direct application in Bosnia and Herzegovina of the rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, and for the supremacy of these rights and freedoms over all other law⁴⁸ and, as such, apparently over even other provisions of the new constitution. As decisions of the national institutions, treaties should pre-empt laws of the Entities.

To carry out these national powers, the new constitution establishes the following national institutions: the Parliamentary Assembly, the Presidency, the Constitutional Court, and the Central Bank. These institutions and their powers will be described briefly here and their decision-making process will be analysed in Part III.

The Parliamentary Assembly consists of the House of Peoples and the House of Representatives. The House of Peoples will have five Delegates from each of the ethnic groups, to be elected by their legislatures at the Entity level. Election of the forty-two members of the House of Representatives will be pursuant to an election law to be passed by the Parliamentary Assembly except that the first election will take place in accordance with Annex 3 to the General Framework Agreement. The Parliamentary Assembly has the power to enact legislation, decide upon the sources and amounts of revenues, approve budgets to be proposed by the Presidency for the operation of the national institutions, and ratify treaties.⁴⁹

The Presidency consists of one Bosniac, one Croat, and one Serb, whose election will be pursuant to an election law to be passed by the Parliamentary Assembly except that the first election will take place in accordance with Annex 3 to the General Framework Agreement. The Presidency has the power to nominate the Chair of the Council of Ministers which will carry out the policies and decisions of Bosnia and Herzegovina. Although not crystal clear, this Council appears to be a "ministerial" organ and has no policy-making power. The Presidency has the power to conduct foreign policy, appoint ambassadors and envoys, represent Bosnia and Herzegovina internationally, negotiate and denounce, and, with consent of the Parliamentary Assembly, ratify treaties, and execute decisions of the Parliamentary Assembly, among others.⁵⁰ Apparently, the Presidency alone may denounce treaties. Finally, "[e]ach member of the Presidency shall, by virtue of the office, have civilian command over armed forces."⁵¹ This language, together with the command that no armed forces of either Entity may enter into the other Entity without consent of the latter and the Presidency,⁵² implies that each member of the Presidency should be the commander-in-chief of the armed forces of his or her ethnic group only. Members of the Presidency shall select a Standing Committee on Military Matters to "coordinate military activities in Bosnia and Herzegovina" and be members of this Committee.⁵³ The power of this Committee is not specified but the term "coordinate" obviously does not imply "command." Any decision will depend upon the good faith of the members of the Presidency.

The Constitutional Court will have nine members.⁵⁴ It will have original and exclusive jurisdiction over disputes arising under the new constitution between the Entities, between one Entity and Bosnia and Herzegovina, or between the national institutions. It will also have appellate jurisdiction over a judgement of any other court and referral jurisdiction over any question referred by any other court, if the issue relates to the new constitution.⁵⁵

The Central Bank will be "the sole authority for issuing currency and for monetary policy throughout Bosnia and Herzegovina." ⁵⁶ This apparently forbids the Entities from issuing their own currency and prevents them from having their own monetary policy. The detailed responsibilities will be determined by the Parliamentary Assembly.⁵⁷

D. General Comments

The core values and the legal system are conducive to nation-building and promoting a common market within Bosnia and Herzegovina. Democracy and the protection of human rights will help heal the wounds of the citizens. The guarantee of freedom of movement of persons, goods and capital, although having a human rights connotation, is no doubt geared towards building a common market.⁵⁸ This guarantee is strong and is capable of being strengthened through judicial interpretation, as the experience of its counterpart in the European Union shows,⁵⁹ and will probably succeed in promoting a lively market. To this guarantee, the new constitution adds the sole authority to issue currency and to make monetary policy throughout Bosnia and Herzegovina. All these if effectively enforced may help build a strong economy, particularly with foreign assistance and investments.

Other than the core values, the national powers are weak and it is questionable whether they can fulfil the aspirations of nation-building. The federal structure will continue to divide the allegiance of the citizens who are both citizens of Bosnia and Herzegovina and the Entities. No doubt many will feel more attached to their Entity than to Bosnia and Herzegovina. When dual citizenship becomes available pursuant to an agreement to be approved by the Parliamentary Assembly,⁶⁰ the division of allegiance will be exacerbated. For this reason, it may be advisable not to approve any such agreement. The potential "special parallel relationships" with neighbouring States may cause strifes. Moreover, the absence of an explicit national defence power and a unified command structure may leave the nation vulnerable to attacks by foreign forces or forces from the Entities. Although the Presidency together with the Standing Committee on Military Matters may decide to co-ordinate military affairs in order to thwart invasions from outside, it may have trouble dealing with ambitions from within Bosnia and Herzegovina. This is extraordinary in light of the fact that national defence is one of the essential attributes of sovereignty.

The lack of an explicit national taxing power may bankrupt the national institutions, although the Entities are to bear the financial burdens.⁶¹ It is possible that an implied taxing power be inferred from the power of the Parliamentary Assembly to decide "the sources and amounts of revenues".⁶² Deciding the sources of revenues is a flexible phrase that may be reasonably interpreted by a court to include taxing power. Lending support to this interpretation is the exception to the financial responsibilities of the Entities carved out in Article VIII(3). That provision states that each Entity shall provide a certain proportion of the revenues required by the budget, "except insofar as revenues are raised as specified by the Parliamentary Assembly."⁶³ This language evinces the drafters' intent that the Parliamentary Assembly should have the power to raise revenue. It is reasonable to consider taxing power part of this power.

Finally, there is no national law enforcement mechanism. Although the new constitution grants the national institutions the power to decide on the inter-Entity co-operation in criminal law enforcement, it creates no mechanism for uniform national law enforcement and thus leaves it to the Parliamentary Assembly and the Presidency to decide. As discussed in Part III below, these national institutions may be paralysed. While the new constitution requires the Entities to maintain civilian law enforcement agencies,⁶⁴ leaving law enforcement to them may prove hazardous. Open defiance or sly arguments may stand in the way of the rule of law. The recent dispute on the kidnapping of Bosniac civilians is a prime example.⁶⁵ It appears that international pressure needs to be resorted to for the purposes of law enforcement, a precarious state of affairs, to say the least. The presence of the International Police Task Force⁶⁶ may alleviate the situation somewhat, but its mandate is limited and its presence will be short-lived. In light of the importance of the matter, it is hoped that the authorities will bury their differences and establish a national law enforcement mechanism.

30 The New Constitution, art. I(1).

31 To this extent, it may be considered a constitution "out of the barrel of a gun". James Cornford, On Writing Constitution, 44 Parliamentary Affairs (1991) 558 (paraphrasing Mao Tse Tung).

32 The New Constitution, art. V(5)(a). The phrase "any armed forces" might be considered to include armed police forces.

33 Id., art. I(7).

34 See Part II.C below.

35 The New Constitution, art. III(3)(a).

36 Id., art. III(2)(a).

37 Id., art. III(2)(d).

38 Id., art. I(7).

39 See James Sloan, The Dayton Peace Agreement: Human Rights Guarantees and Their Implementation, 6 EJIL (1996) __, for a full analysis on this issue.

40 The New Constitution, art. II(2).

41 Id., art. X.

42 Id., arts. III(1), VII.

43 Id., art. III(3), (4).

44 Id., art. III(3)(b).

45 Id.

46 Id.

47 See Antonio Cassese, Modern Constitutions and International Law, 192(III) Recueil des Cours (1985) 335.

48 The New Constitution, art. II(2).

49 Id., art. IV(1)-(4).

50 Id., art. V(1)-(4).

51 Id., art. V(5)(a).

52 Id.

53 Id., art. V(5)(b).

54 See Part III.D on the composition of the Court.

55 Id., art. VI.

56 Id., art. VIII. See Part III.C on the composition of the Bank.

57 Id.

58 The preamble of the new constitution states that the peoples desired "to promote the general welfare and economic growth through the protection of private property and the promotion of a market economy."

59 See George A. Bermann, et al., Cases and Materials on European Community Law (1993) 315 ("the most powerful force for the achievement of the four freedoms was the Court of Justice, whose constantly expanding case law widened the field of Community rights and struck down many barriers to trade").

60 The New Constitution, art. I(7)(d).

61 Id., art. VIII(3).

62 Id., art. IV(4)(b).

63 Id., art. VIII(3).

64 Id., art. III(2)(c).

65 See, e.g., John Pomfret, Serbs Release 16 Civilians Held for 10 Days, The Washington Post, 5 Jan. 1996, p. A24.

66 See Annex 11 to the General Framework Agreement.

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