The New Constitution of Bosnia and Herzegovina

III. Ethnic Sovereignty and Potential Breakdowns in Decision-making

The weak national powers granted by the new constitution to the national institutions may be further weakened if not completely debilitated by the potential breakdowns in the decision-making process of these institutions. The potential problem comes from the phenomenon I have referred to as "ethnic sovereignty" in the composition and decision-making process of the national institutions. In each of the national institutions, each of the constituent peoples, the Bosniacs, the Croats and the Serbs, as opposed to simply the territorial components in other federal nations, is represented essentially equally, and, other than in the Central Bank and the Constitutional Court, each group has essentially a veto power over all essential decision-making therein. This structure presumably was intended to ensure equality of the ethnic groups, but wittingly or unwittingly it gives each ethnic group the ultimate decision-making power in any matters it considers important to it. In this sense, each group enjoys sovereignty. This ethnic sovereignty if fully utilised will ultimately paralyse the national institutions.

A. The Parliamentary Assembly

Ethnic sovereignty prevails in the Parliamentary Assembly. The Assembly consists of the House of Peoples and the House of Representatives.⁶⁷ All legislation will require the approval of both chambers⁶⁸ and accordingly each chamber may prevent any decision from being made.

The House of Representatives is designed to represent the population at large and conducts its business with a quorum consisting of a majority of all members.⁶⁹ Decisions in this House will normally be taken by majority of those present and voting, but a two-thirds majority of the Members from the territory of either Entity (rather than ethnic group) may block a measure.⁷⁰ This means that either the Bosniacs or the Croats separately as a group may not have enough votes to veto a decision in this House, unless either group elects two-thirds of all members from the Federation of Bosnia and Herzegovina. Together these two groups (including where both agree on the matter under consideration, or where they disagree but one group wins enough members from the other to constitute a two-thirds majority) have a veto. The Serbs from Republika Srpska as a group, however, will have a veto.

However, the House of Peoples is designed to represent the ethnic groups as groups rather than the population at large and it is there where ethnic sovereignty is most likely to rear its ugly head. Each of the ethnic groups will have equal representation in the House of Peoples. The House of Peoples will have fifteen Delegates, five Croats and five Bosniacs to be selected, respectively, by the Croat and Bosniac Delegates to the House of Peoples of the Federation of Bosnia and Herzegovina, and five Serbs by the National Assembly of the Republika Srpska.⁷¹ This equal representation does not provide any group with a veto power but the quorum requirement does. The new constitution provides that a quorum must include at least three Bosniac, three Croat and three Serb Delegates.⁷² Should any group intend to block any proposed legislation, its Delegates need only absent themselves. Such a mechanism is easy to take advantage of and must be tempting to those who are inclined to abuse it. This assures each ethnic group the ultimate decision-making power in the Parliamentary Assembly.

Once the Delegates are present, decisions will normally be taken by majority of those present and voting. It will take two-thirds or more of the Delegates from either Entity (rather than ethnic group) to block a decision.⁷³ In addition, a majority of the Delegates from each group may declare a legislative measure destructive of a vital interest of its ethnic group, but that declaration does not in itself defeat the measure; it will merely initiate a procedure for negotiation and compromises. If that procedure fails, the matter will be sent to the Constitutional Court for review which is limited to procedural regularity.⁷⁴ This limitation on the Court's jurisdiction obviously is designed to protect the supremacy of the substantive decisions of the legislature but is bound to be controversial. To the extent that this limitation adversely affects human rights and fundamental freedoms, it probably is invalid.⁷⁵

B. The Presidency

The Presidency will consist of two members elected directly elected from the Federation of Bosnia and Herzegovina--one Bosniac and one Croat--and one Serb from Republika Srpska.⁷⁶ Decisions will be made by consensus and failing that by majority vote.⁷⁷ Article V(2)(d) provides that "[a] dissenting member may declare a decision to be destructive of vital interest of the Entity from the territory from which he was elected."⁷⁸ Once such a declaration has been made, the decision will be referred to "the National Assembly of the Republika Srpska, if the declaration was made by the Member from that Territory; to the Bosniac Delegates of the House of the Peoples of the Federation, if the declaration was made by the Bosniac Member; or to the Croat Delegates of that body, if the declaration was made by the Croat Member."⁷⁹

If the declaration is confirmed by a two-thirds vote of the respective persons within ten days of the referral, the challenged decision will have no effect.⁸⁰ The language "vital interest of the Entity" is in effect the "vital interest of the ethnic group" because a Bosniac declaration will be voted upon only by the Bosniac Delegates in the Federation and a Croat declaration, by the Croat Delegates only.

This power to declare a decision destructive to the interest of an ethnic group is apparently designed to enable each ethnic group's representative in the Presidency to protect the vital interest of that group. The confirmation process ensures that such a declaration truly represent the position of the ethnic group. Together, they ensure that each group have a veto and thus a final say in the Presidency.

C. The Central Bank

The Central Bank will have for six years a first Governing Board consisting of one outside Governor to be appointed by the International Monetary Fund, who may not be a citizen of Bosnia and Herzegovina or any neighbouring State, and three members appointed by the Presidency, two from the Federation of Bosnia and Herzegovina (one Bosniac and one Croat) sharing one vote, and one from Republika Srpska.⁸¹ The Governor may cast a tie-breaking vote.⁸² After the first six years, the Governing Board will consist of five members to be appointed by the Presidency.⁸³ The new constitution does not specify any eligibility or quorum requirements, which thus need to be determined in the future.

It is thus clear that none of the ethnic groups will have a veto power in the decision-making process of the Central Bank and in the first six years it will be immune from impasses. However, ethnic sovereignty will still prevail here. The responsibilities of the Bank will be determined by the Parliamentary Assembly.⁸⁴ The appointment of the members after six years will be completely controlled by the Presidency. Both the Parliamentary Assembly and the Presidency will have to combat the veto power of each group.

D. The Constitutional Court

The composition and decision-making process of the Constitutional Court do not strictly follow the pattern of the other institutions, although ethnicity figures prominently even in this judicial organ. Out of the nine members of the Court, six will be internal judges who must be eligible voters and thus must be citizens and residents of Bosnia and Herzegovina.⁸⁵ Four of the internal judges will be selected by the House of Representatives of the Federation of Bosnia and Herzegovina, two by the Assembly of Republika Srpska. ⁸⁶ The remaining three will be outside judges, who may not be citizens of Bosnia and Herzegovina or any neighbouring State, to be appointed by the President of the European Court of Human Rights after consultation with the Presidency.⁸⁷ In the future the Parliamentary Assembly may provide another method of selecting the three outside judges.⁸⁸ Strictly speaking, the four judges to be selected by the Federation of Bosnia and Herzegovina need not be divided equally between the Bosniacs and the Croats and thus the three ethnic groups may not be represented equally on the Court.

One can only speculate as to why even the composition of this judicial organ is still so ethnically oriented, except for the three outside judges. The ideal of justice should be that ethnicity plays no part in judicial decision-making, whatever one may say about legislative and executive decision-making, and that judges act only in their individual capacity to hand out justice impartially and conscientiously. The new constitution does not so provide expressly, but one may infer this from the requirement that judges be jurists of high moral standing.⁸⁹ Even if the new constitution is silent on this point, one must not forget that this ideal is inherent in any exercise of judicial power.

Finally, the composition of the Court and the quorum requirement are such that no one ethnic group will have a veto power at the Court. The new constitution provides that a majority of all judges constitute a quorum and thus two internal judges together with the three outside judges will be able to conduct business. ⁹⁰ As the new constitution does not specify the voting requirement for decision-making, presumably decisions will be made by majority of those voting.⁹¹ Theoretically the three outside judges voting as a block against the other two in a possible quorum of five may decide the outcome of certain cases. ⁹² Consequently, the impasses that may plague the legislature and executive branches will not visit upon the Court.

E. General Comments

The ethnic sovereignty prevailing in the legislative and executive branches of the government is likely to paralyse the government and ultimately the nation. The leitmotif underlying ultimate decision-making in both of these branches is not democracy but ethnicity. To this extent, it conflicts with the democratic principles enshrined in Article I(2), although the election of members to these bodies may to some extent be based on democracy. Although it has the seductive appeal of ensuring equality of the ethnic groups, it is ultimately a mild form of racism. As such, ethnic sovereignty does not help foster one people for one nation but will keep three peoples separate and divide their allegiance. It affords each group the chance to bring down the whole nation, and if history is any guide, it is possible that one of them will. One need only look at the dissolution of the former Czechoslovakia,⁹³ if the fate of the former Yugoslavia is not sufficient proof.⁹⁴

Free from the potential impasses that may haunt the legislative and the executive branches, the Constitutional Court and the Central Bank, if taking an activist and instrumental view, may provide in certain circumstances some remedy for the potential ills in the governmental structure. However, this is not cause for optimism. The Central Bank's responsibilities are to be assigned by the Parliamentary Assembly which may be paralysed. The Court has its inherent limitations and cannot take over the competencies of other branches. It also will be handicapped by the lack of a national law enforcement mechanism. Its orders may risk defiance. More important, a government of juristocracy has its drawbacks and will defeat the democratic principles that the new constitution champions because the judges are not democratically elected.

67 Id., art. IV.

68 Id., art. IV(3)(c).

69 Id., art. IV(2).

70 Id., art. IV(3)(d).

71 Id., art. IV(1).

72 Id.

73 Id., art. IV(3)(d).

74 Id., art. IV(3)(e), (f).

75 See supra note 47 and the accompanying text.

76 Id., art. V.

77 Id., art. V(2)(c).

78 Id., art. V(2)(d).

79 Id.

80 Id.

81 Id., art. VII(2).

82 Id.

83 Id., art. VII(3).

84 Id., art. VII(1).

85 Id., arts. VI(1)(a), (b), I(7)(d).

86 Id., art. VI(1)(a).

87 Id.

88 Id.

89 Id.

90 Id., art. VI(2).

91 The new constitution does not provide a voting requirement in deciding cases, but it should be presumed that it is by majority. The Court may provide this in its rules to be made under Article VI(2).

92 The presence of the outside judges alone, not to mention their theoretical power to decide the outcome of cases, is rather extraordinary and no doubt will be considered foreign assistance by some and foreign intervention by others. It may not be pleasing to the people to have foreigners sitting on their highest court but it may be the necessary evil at present. It is hoped that the outside judges will not only be "jurists of high moral standing," the New Constitution, art. VI(1)(b), but also will have an intimate knowledge of the situation in Bosnia and Herzegovina so that they will not wander too far from the pains and aspirations of the citizens, or worse, impose their "foreign views" on the local population.

93 See Katarina Mathernova, Czecho?Slovakia: Constitutional Disappointments, in A.E. Dick Howard, (ed.), Constitution Making in Eastern Europe (1993) 57.

94 In 1988 a constitutional law scholar in the United States questioned "whether a constitutional arrangement can exist where it is impossible to have one people", and stated categorically that he found "a constitutional arrangement based upon race inconceivable." Remarks of William T. Coleman, in Robert A. Goldwin & Art Kaufman (eds.), Constitution Makers on Constitution Making (1988) 456. At that time, the turmoil had yet to arrive in the former Yugoslavia and Mr. Coleman singled it out as an aberration from his theory.

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