Constitution of Bosnia and Herzegovina

The Constitution of Bosnia and Herzegovina was adopted as Annex 4 to the Dayton Peace Agreement. As a result, it has an international and legal quality and it is the “Octroyed Constitution”.³⁵⁹⁸ The Constitution establishes the State as a strongly decentralised federal State with very weak State institutions at the State level. Pursuant to Article I.1 of the BiH Constitution, Bosnia and Herzegovina shall continue its legal existence under international law as a State with its present internationally recognized borders and it shall remain a Member State of the United Nations and may, as a State, remain or become a signatory party to the Agreements listed in Annex I to the BiH Constitution. Pursuant to Article I.3 of the BiH Constitution, Bosnia and Herzegovina shall consist of the two Entities. The critics consider that the State is weak, inefficient and ineffective. On the one hand, modification of the BiH Constitution is necessary in order to reinforce the central authority but, on the other hand, it has no prospect of success as political consensus within the State, between the peoples and the State administrative-territorial units (of Bosnia and Herzegovina, the Entities, the cantons and the municipalities) cannot be achieved due to a lack of integrative motivation.³⁵⁹⁹ This is corroborated by the fact that the text of the BiH Constitution – Annex 4 to the Dayton Peace Agreement – has not yet been published in the Official Gazette of Bosnia and Herzegovina. The BiH Constitutional Court (Article VI of the BiH Constitution) is probably the most effective instrument at the State level.³⁶⁰⁰ It establishes a balance between democracy and ethnocracy,³⁶⁰¹ between the powers of the High Representative and of the institutions of the State, which are distributed in accordance with the principle of separation of powers, and it safeguards the human rights and freedoms.

On 25-26 March 2009, the Constitution of Bosnia and Herzegovina was modified by constitutional Amendment I,³⁶⁰² which reads as follows:

“In the Constitution of Bosnia and Herzegovina, a new Article VI(4) shall be added after Article VI(3) and read as follows:

‘4. Brčko District of Bosnia and Herzegovina

The Brčko District of Bosnia and Herzegovina, existing under the sovereignty of Bosnia and Herzegovina and falling under the responsibility of the institutions of Bosnia and Herzegovina as arising from the Constitution, which territory is jointly owned by the Entities, shall be a local self-government unit with own institutions, laws and regulations, and powers and status laid down finally in the decisions of the Arbitral Tribunal for the Dispute over the Inter-Entity Boundary Line in Brčko Area. Relations between the Brčko District of Bosnia and Herzegovina and the institutions of Bosnia and Herzegovina and the Entities may be additionally specified by law enacted by the Parliamentary Assembly of Bosnia and Herzegovina.

The Constitutional Court of Bosnia and Herzegovina shall have jurisdiction to decide any dispute in relation to the protection of the established status and powers of the Brčko District of Bosnia and Herzegovina that arises under this Constitution and decisions of the Arbitral Tribunal between an Entity or Entities and the Brčko District of Bosnia and Herzegovina or between Bosnia and Herzegovina and the Brčko District of Bosnia and Herzegovina.

Any such dispute may be referred by a majority of representatives of the Assembly of the Brčko District of Bosnia and Herzegovina including at least one fifth of the members elected from amongst each constituent people.’

The current Article VI(4) shall become Article VI(5). […].”

When it comes to the outline of the mentioned amendment, it was expected that its paragraph 1, regulating the status of the Brčko District, would be classified, primarily and in a principled manner, under Article III of the BiH Constitution, as it entails the substantive constitutional law, which stipulates the rights and obligations of the institutions of Bosnia and Herzegovina and the Brčko District. Indeed, such a classification may give rise to the impression that it relates to a third entity, which would not correspond to the “condominium” held by the Entities. Therefore, the classification under Article VI, which relates to the BiH Constitutional Court, is a lesser evil.

The BiH Constitution was amended in compliance with Article X of the BiH Constitution. In the reasoning, the following arguments are offered as to amendments referred to in paragraph 1 of Amendment I to the BiH Constitution: amendments to the BiH Constitution are necessary to end the mandate of the Brčko Arbitral Tribunal, as also foreseen by the Final Award. This actually implies paragraph 13 thereof, which stipulates that both the Entities – as stated therein – “implement without delay” this “final and binding” Arbitral Tribunal’s award. The Arbitral Tribunal will remain in existence until such time as the Supervisor, with the approval of the High Representative, has notified the Arbitral Tribunal that the two Entities have fully complied with their obligations to facilitate the establishment of the new institutions of the District, and that such institutions are functioning, effectively and apparently permanently, within Brčko. Until then, the Arbitral Tribunal will retain authority, in the event of serious non- compliance by either Entity, to modify the Final Award as necessary – e.g., by placing part or all of the District within the exclusive control of the other Entity. Accordingly, amendments to the BiH Constitution are required for the further development of the provisions of Article V of Annex 2 to the Dayton Peace Agreement, which stipulates that, since then, the status, rights and obligations of the Brčko District have been constitutionally established and protected at the State level by the BiH Constitutional Court.

As to Articles 2 and 3 of Amendment I to the BiH Constitution, the following reasons are offered: the BiH Constitutional Court shall have jurisdiction to decide any dispute in relation to the protection of the established status and powers of the Brčko District of Bosnia and Herzegovina that may arise under the BiH Constitution and decisions of the Arbitral Tribunal between an Entity or Entities and the Brčko District of Bosnia and Herzegovina or between Bosnia and Herzegovina and the Brčko District of Bosnia and Herzegovina. Furthermore, the Assembly of the Brčko District of Bosnia and Herzegovina has the authority to institute proceedings in such disputes.

In addition, the first sentence of paragraph 1 of Amendment I to the BiH Constitution defines the status of the Brčko District in accordance with the Final Award. This provision, also, establishes that the powers and status are laid down finally in the decisions of the Arbitral Tribunal and that those cannot be modified by new amendments to the BiH Constitution. In the second sentence it is stipulated that the Parliamentary Assembly of Bosnia and Herzegovina may, by law, define the relationship between the Brčko District and the institutions of Bosnia and Herzegovina.

Paragraph 2 of Amendment I to the BiH Constitution prescribes that the Constitutional Court shall have jurisdiction to decide any dispute in relation to the protection of the established status and powers of the Brčko District of Bosnia and Herzegovina that may arise under the BiH Constitution and decisions of the Arbitral Tribunal between an Entity or Entities and the Brčko District of Bosnia and Herzegovina or between Bosnia and Herzegovina and the Brčko District of Bosnia and Herzegovina.

Paragraph 3 of Amendment I to the BiH Constitution governs proceedings before the BiH Constitutional Court relating to the Brčko District. The Assembly is entitled to refer any dispute to the BiH Constitutional Court by a majority of representatives of the Assembly, including at least one fifth of the members elected from amongst each constituent people. This provision must be read together with Article VI.3 of the BiH Constitution, given that the list of persons authorised to file a request with the BiH Constitutional Court, as specified in Article VI.3(a) of the BiH Constitution, is actually extended.

Even prior to the enactment of the Amendment to the BiH Constitution the Brčko District was entitled to constitutional protection. Thus, the physical and legal persons,³⁶⁰³ including the District itself,³⁶⁰⁴ were already filing appeals with the BiH Constitutional Court seeking protection of their constitutional rights and freedoms. Consequently, there was no significant difference between the Brčko District and other administrative-territorial levels of authority in Bosnia and Herzegovina. Moreover, the authorised persons under Article VI.3(a) have been entitled under Article VI.3(a) of the BiH Constitution to initiate³⁶⁰⁵ proceedings of abstract review of constitutionality relating to the laws of the Brčko District.³⁶⁰⁶ In conclusion, the BiH Constitutional Court was interpreting the provisions of the BiH Constitution, which also concern the Brčko District itself.

However, this principle does not apply to the special parallel relations of Entities with neighbouring countries (Article VI.3(a), the first line of the BiH Constitution) for the reason that the Brčko District is not an Entity. The protection is not provided with respect to disputes between the authorities within the Brčko District (compare with Article VI.3(a) of the BiH Constitution). Moreover, there is no protection provided for disputes involving protection of a “vital national interest” of the people (Article IV.3(f) of the BiH Constitution). The lastly mentioned deficiency can hardly be explained.

It is questionable whether the courts of Brčko District are entitled to initiate proceedings of incidental review of constitutionality in accordance with Article VI.3(c) of the BiH Constitution. According to the linguistic meaning of this constitutional provision that review would not be a problem since this provision refers to the courts in Bosnia and Herzegovina. However, Article 40 of the Revised Statute of Brčko District gives a false idea³⁶⁰⁷ since it provides for the jurisdiction of the courts of Brčko District to decide on the constitutionality of any provision of any law, by-law or rule book of the Brčko District; on the constitutionality of any decision or resolution of the Assembly of Brčko District; on the constitutionality of any provision of any law, by-law or rule book of the Entities or the State and on the constitutionality of any legal act of any institution of the District, or any legal act of any institution of Bosnia and Herzegovina or either Entity having an effect in the District.³⁶⁰⁸ Thus, when it comes to the issue of constitutional review, by this Statute the constitutional jurisdiction of the BiH Constitutional Court is contrasted with the Anglo- American decentralised model. Until the enactment of the Amendment, such authorisation or order to the courts of Brčko District could have been justified by a need to guarantee effective legal protection. After the Brčko District has been placed under the jurisdiction of the Constitutional Court this legal solution can no longer be justified.

The greatest value of Amendment I to the BiH Constitution is the fact that the status of Brčko District was raised to the constitutional level and that the BiH Constitutional Court became “a guardian” of that status. The weakness of this Amendment is the requirement of a quorum for initiation of proceedings before the BiH Constitutional Court, which means that at least one fifth of the members elected from amongst each constituent people must be present. In this way each constituent people has been granted a right of veto. There have been negative experiences associated with a comparable provision concerning the decision-making procedure in the Parliamentary Assembly of Bosnia and Herzegovina (Article IV.3 (d) of the BiH Constitution), and this becomes even more evident in a similar clause on obligatory compromise when it comes to the elements of “vital national interest”³⁶⁰⁹ (compare Article IV.3(e), (f) of the BiH Constitution). This constitutional veto will eventually lead to a procedural blockage and, consequently, to a political blockage.