The New Constitution of Bosnia and Herzegovina

Sienho Yee¹

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The Constitution of Bosnia and Herzegovina (the new constitution)² has come into being as Annex 4 to the General Framework Agreement for Peace in Bosnia and Herzegovina. It has been in effect since December 14, 1995, upon the signing in Paris of the latter.³ The plain language of the new constitution states that it is a constitution "determine[d]"⁴ by the constituent peoples--the Bosniacs, the Croats, and the Serbs--and intended to continue the existence of the Republic of Bosnia and Herzegovina⁵ and to amend and supersede⁶ the Constitution of the Republic of Bosnia and Herzegovina (the old constitution).⁷ Is it a legitimate amendment? Is it the result of a democratic constitution making process? The content and structure of the new constitution indicate that it aspires to build one nation with two territorial component Entities--the Federation of Bosnia and Herzegovina and Republika Srpska--while preserving the sovereignty of the constituent peoples. What are the basic structures of this nation? Is it going to succeed?

This paper comments on these issues in an effort to provoke debate. Part I argues that questions may be raised about the legitimacy of the new constitution as a democratic constitution and proposes that to alleviate such concerns the respective legislatures of the Entities "ratify" the new constitution if they have not done so properly. Part II briefly describes and analyses the basic structures of the governmental system set up by the new constitution. The core values enshrined in the new constitution and the legal system are conducive to building "one nation" and a common market. It is questionable, however, whether enough national powers have been granted by the new constitution to make nation-building a success. Part III analyses the decision-making process of the national institutions. The institutional structures of the legislative and the executive branches trumpet the triumph of "ethnic sovereignty," providing each ethnic group with an effective veto over all essential legislative and executive decisions, and thus will probably doom the whole enterprise of nation-building. The Central Bank and the Constitutional Court to be established will likely be free from the paralysis that may plague the legislative and executive branches and, if operating with an instrumental outlook, may provide in certain circumstances some limited remedy for the potential impasses in the political institutions.

I. Questions on Legitimacy

By any standards, the process through which the new constitution was framed and put into force can only be characterised as unusual. This unusual process gives rise to two questions: whether the amendment procedure under the old constitution had been complied with and whether the new constitution is the result of a democratic constitution-making process. These questions take on particular relevance, as the new constitution itself claims to be an amendment to the old constitution and to have been determined by the constituent peoples.

A. Possible Violation of the Amendment Procedure

Article XII of the new constitution states that "[t]his Constitution shall enter into force upon signature of the General Framework Agreement as a constitutional act amending and superseding the Constitution of the Republic of Bosnia and Herzegovina."⁸ This language may be read as stating that the new constitution is "the constitutional act amending and superseding" the old constitution or that the General Framework Agreement is the "constitutional act amending and superseding" the old constitution and the signing of that agreement would bring the new constitution into effect. The result is the same: a transformative change to the old constitution was being effected by the mere signing of the General Framework Agreement.

The old constitution apparently did not permit such an unusual amendment process. A proposal to make an amendment to the old constitution must comply with certain procedures. The legislation on amending the constitution must "be drafted by the Assembly at the joint session of the Assembly"⁹ and be presented to the public for discussion,¹⁰ and must finally be decided at a joint session of all chambers of the Assembly.¹¹ An amendment can only "be adopted if two-thirds of the total number of the deputies of every chamber of the Assembly vote in favour of it."¹² The plain terms of the new constitution do not comply with these requirements. It requires neither presentation to the Assembly or the public for debate nor approval by a joint session of the Assembly.¹³

It is fair to say that the procedural formalities of amending the old constitution have not been followed to the letter. The new constitution was primarily hammered out at the international level in Dayton, rather than drafted by the Assembly. However, one might argue that if the legislature of the Republic of Bosnia and Herzegovina approved the new constitution before it went into effect, such approval, although not required under the terms of the new constitution, would support the argument that the essential aspect of the amendment procedure was followed de facto, which should legitimise the amendment. The problem is that the legislature never did so with the requisite two-thirds majority of the total number of the deputies of every chamber (not just those present and voting).¹⁴

In all likelihood the new constitution is not a legitimate amendment to the old constitution. The implication of this possible violation of the amendment procedure under the old constitution is unclear. Such a violation is probably innocuous and definitely not fatal, if the new constitution is otherwise legitimate. However, this violation may invalidate part of the language in Article XII regarding its status as amendment. This means that the new constitution is not an amendment to the old, but a completely new one. The old constitution has simply been jettisoned. A new regime is being established.

Such an abandonment of an old constitution probably has no effect on the new constitutional order to be instituted under the new constitution. All the old institutions both political and legal are gone and all the new institutions both political and legal will operate under the authority of the new constitution. When a dispute relating to rights and duties exist, the new constitution and laws made under its authority will provide rules of decision for the courts. ¹⁵ Nor does this abandonment in itself affect the continuation of the legal existence of Bosnia and Herzegovina under international law as a state. Normally changes in its constitution or government will not affect the personality of a country under international law, unless such changes are substantively incompatible with such personality, which is not the case with the new constitution.

The abandonment of an old constitution in favour of a new one may be justified on theories of necessity in times of great distress or revolution. In times of crisis, the niceties of normal procedure may need to be sacrificed. Under revolutionary theories, the people can always change their government in order to meet the needs of the nation. Both grounds militate in favour of the new constitution of Bosnia and Herzegovina, but each in itself is sufficient to legitimise it. An obvious analogy is the relationship between the United States Constitution and its predecessor--Articles of Confederation. The Constitution provides that it would go into effect when the ratification conventions of nine states ratified it,¹⁶ while the Articles required any amendment to be first "agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State."¹⁷ The United States Constitution's break from the amendment procedure under the Articles was thus twofold: both with respect to who had the power to ratify and what the voting requirements were. In defence of the Constitution, some alluded to both theories of necessity and revolution,¹⁸ while others stressed grounds of revolution.¹⁹ Respectable scholars have argued that the founding of the United States was unconventional and the departure from the amendment procedure under the Articles is best characterised as "revolutionary reform."²⁰ Compared to the United States at the end of the 1870's, the dire situation in Bosnia and Herzegovina provided a stronger case for relying on either necessity or revolutionary theories.

B. The Undemocratic Origin

In addition to claiming to be an amendment to the old constitution, the new constitution also asserts that "Bosniacs, Croats, and Serbs, as constituent peoples (along with others), and citizens of Bosnia and Herzegovina ... determine[d]"²¹ the Constitution. This obviously is an allusion to the famous phrase "We the People" that appears in the United States Constitution.²² This catch phrase stands for popular sovereignty, which no doubt is the most legitimate source of authority.²³ If the document is not the work of the people, however, the presence of that famous phrase does not transform it into one of democratic origin.

Does the new constitution live up to its claim to being a constitution of democratic origin? Theoretically, the people may participate in the drafting and the ratification of a constitution. The people may participate directly through a referendum or plebiscite or indirectly through their representatives. The terms of the new constitution require neither form of democracy to bring it to life. No ratification by referendum is required for its entry into force. Neither was ratification by the legislature of the Republic of Bosnia and Herzegovina, or by the legislature of the Federation of Bosnia and Herzegovina or that of Republika Srpska. Instead, the new constitution went into effect "upon signature of the General Framework Agreement" by the Republic of Bosnia and Herzegovina, Republic of Croatia and the Federal Republic of Yugoslavia.²⁴ This is an undemocratic birth.²⁵

Although not necessary to bring the new constitution into life under its own terms, the "gratuitous" approval of the new constitution by the legislatures of the Federation of Bosnia and Herzegovina and Republika Srpska may be considered as de facto blessing of the people and would probably sanitise it. This would support the argument that the new constitution has been "ratified" by the people through their representatives.²⁶ It is not clear whether such approval has been properly given. It was reported that the legislature of the Federation of Bosnia and Herzegovina supported the Dayton Peace Agreement and therefore presumably the new constitution, and approved its signing.²⁷ However, the Bosnian Serb assembly was alternatively reported on 17 December 1995 to have ratified the Dayton Peace Agreement only "conditionally"²⁸ or decided that it "would not endorse the Bosnian peace accord for the time being."²⁹ Conditional ratification, if it indeed existed, after the agreement went into effect is troubling and its implication is not clear. It is submitted that the respective legislatures of the Entities should study the situation and act to "ratify" the new constitution wholeheartedly and unconditionally if such ratification has not in fact been carried out. This proposed ratification should be accomplished as soon as practicable and before any institutions are established so that their existence may not be questioned.

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1 Member of the New York Bar.

2 The Constitution of Bosnia and Herzegovina [hereinafter, the New Constitution], Annex 4 to the General Framework Agreement for Peace in Bosnia and Herzegovina [hereinafter, the General Framework Agreement; together with the Annexes, the Dayton Peace Agreement], negotiated in Dayton, Ohio, November 1-21, 1995, signed in Paris on December 14, 1995.

3 The New Constitution, art. XII.

4 Id., preamble, last clause.

5 Id., art. I(1).

6 Id., art. XII(1).

7 This apparently refers to the Constitution of the Socialist Republic of Bosnia and Herzegovina of 1974, as amended [Hereinafter, the Old Constitution]. Although many things had taken place since the Republic declared its independence and dropped the term "socialist" from its name, it had not managed to formally overhaul its constitution until the new constitution went into effect on 14 December 1995. This old constitution had over four hundred articles and many amendments, presenting a serious problem for its application. In 1993, several Bosnian scholars edited a consolidated constitution styled as the "Definitive Version" (Pre~i{}eni tekst), which was published in the Official Gazette of the RBiH, 14 Mar. 1993. Citations below are to the Definitive Version (Unofficial translation of selected provisions by Vanessa Piggot).

8 The New Constitution, art. XII.

9 The Old Constitution (Definitive Version), art. 268 (2).

10 Id.

11 Id., art. 268(3) & (4).

12 Id., art. 268(3). A change to the old constitution may be made by a constitutional law or an amendment, id., art. 268(5). It is not clear whether the voting requirement for a constitutional law is different from that for an amendment. If substantive changes to the old constitution may be made by both constitutional laws and amendments, the voting requirement should be the same. If not, the more stringent requirement for amendments will be circumvented.

13 One may argue that the old constitution may permit other means of amending it such as by the Presidency through the emergency powers. See The Old Constitution (Definitive Version), art. 222. But the tenor of the language of this article shows that it is limited to defence and other wartime matters during the state of war or emergency and should not be interpreted to permit a transformative change in the old constitution.

14 The Assembly elected in 1990 had the mandate to continue its functions until the peace agreement on Bosnia and Herzegovina was reached and implemented, see Constitutional Law of 30 March 1994, art. 4, Official Gazette of RBiH, 6 Apr. 1994, at 127. That Assembly consisted of two chambers, one with 130 members and the other 110, see Official Gazette of SRBiH, 19 Dec. 1990, at 1263 (table of election results). After the Serb members abandoned the Assembly, 161 members remained. The Assembly at a joint session approved the Dayton Peace Agreement on November 30, 1995, with 85 members present and voting in favour. On December 12, 1995, the Assembly at a joint session passed a Constitutional Law on Amendments and Additions to the Constitution, Official Gazette of RBiH, 20 Dec. 1995, at 540, with 92 members voting in favour. [Voting information was provided by the Embassy of Bosnia and Herzegovina in Brussels in a letter dated 31 January 1996, on file with the author.] Accordingly, less than a two-thirds majority of the remaining members voted in favour at either session. If the total members of the 1990 Assembly were counted, no simple majority existed.

15 When there is a conflict between the laws of a new regime and those of the old, courts established by the new regime normally apply the rules of decision provided by the new regime. This may cause injustice but courts might not be able to deal with it. Cf. Johnson & Graham's Lessee v. M'Intosh, 21 U.S. 543, 588 (1823) ("Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted."). The legislature is better positioned to resolve such a problem.

16 US Constitution, art. VII.

17 US Articles of Confederation, art. XIII, reprinted in Henry Cabot Lodge (ed.), The Federalist (1888) 560.

18 James Madison appeared to embrace both necessity and revolution theories. On necessity, see The Federalist, No. XLIII (Madison), in Lodge, The Federalist 267, 275-76. On revolution, see The Federalist, No. XL (Madison), in Lodge, id., 239, 246.

19 See Letter from John Quincy Adams to William Cranch (Oct. 14, 1787), quoted in Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62 U. Chi. L. Rev. (1995) 475, 487-88.

20 See Bruce Ackerman & Neal Katyal, id. at 478.

21 The New Constitution, preamble.

22 US Constitution, preamble.

23 See Univ. Declaration of Human Rights, UNGA Res. 217(A) (1948), art. 21 ("The will of the people shall be the basis of the authority of government"); Int'l Covenant on Civil & Political Rights, 999 UNTS 171, art. 25. See also James Crawford, Democracy and International Law, 64 BYIL (1993) 113.

24 The New Constitution, art. XII.

25 Although each of the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska attached to the new constitution a declaration stating that it approved the new constitution, see The New Constitution, Annexes, these declarations were not a condition to its entry into force. More importantly, these declarations were decisions of the various governments, and not necessarily those of the people.

26 Such ratification solely by the legislature of the Republic of Bosnia and Herzegovina constituted under the old constitution would be problematic. It did not represent all the constituent peoples which representation would be necessary as the new constitution claims to be "determined" by all peoples. It is arguable that it no longer had power after the new constitution went into effect on 14 December 1995. Nor can it be carried out by the new Parliamentary Assembly to be constituted under the new constitution because the legitimacy of the new Parliamentary Assembly depends upon that of the new constitution.

27 See Report of Croatian TV, 13 Dec. 1995, as summarised by BBC Summary of World Broadcasts, 14 Dec. 1995, available in NEXIS, CURNWS file.

28 See Bryan Brumley, Slow Day Plus Four for Fog-bound GIs in Bosnia, AP International News, 17 Dec. 1995, available in NEXIS, CURNWS file.

29 Agence France Press, International News, 17 Dec. 1995, available in NEXIS, CURNWS file.

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