D. Doubts about legitimacy

Individuals deny the legitimacy of the BiH Constitution for its unusual genesis, and also by providing arguments that the 1974 RBiH Constitution is still in force in its revised version from February 1993.⁵⁸ If we look at it strictly, indeed no amendments to the old RBiH Constitution had occurred within the framework prescribed.⁵⁹ It is more accurate to state that the BiH Constitution “amends and renders ineffective” (Article XII.1) the RBiH Constitution, without action on the part of the competent authorities provided for in the RBiH Constitution and without the proceedings provided for in the RBiH Constitution. The rest of the RBiH Assembly, which stayed behind after the Bosnian Serbs representatives departed, at a session of 30 November 1995, accepted the Dayton Agreement, and in the RBiH Constitutional Law of 12 December 1995⁶⁰ it declared the BiH Constitution valid, provided that the Dayton Agreement be “satisfactorily” implemented. Otherwise, the BiH Constitution ought to be declared null and void and the RBiH survival secured under the internationally recognised name. This act lacked a majority, which, according to the RBiH Constitution, was necessary for amendments to the constitution.⁶¹ In any case, both Entities’ parliaments approved the BiH Constitution subsequently.⁶² In addition to formal shortcomings, an objection was raised that the country was given a new constitution without preliminary debate which would have legitimised it politically, without having been approved or accepted afterwards by “the competent constitution-making bodies”.⁶³ It is claimed that the BiH Constitution did not “grow out of the internal legal structures”, and therefore it has “few organic grounds in Bosnia and Herzegovina itself”.⁶⁴

Besides, it was objected that the BiH Constitution, under the constitutional and legal standards, does not possess the “quality of a constitution”, for, as claimed, it destroys the political unity of the Bosnian State people (Staatsvolk), it deprives it of its constitution-making features and encourages disintegration of a State community. Unlike the RBiH Constitution, it is further stated that (abstract) citizens of the State are no longer holders of the constitution-making power, but ethnic groups. Ethnic groups, as constitution-makers, and their respective representatives in Dayton, lacked the democratic legitimacy that the entire State people should have. Territorial division legitimates the war’s “ethnic cleansing”. Also, the BiH Constitution proved entirely inappropriate for its main task – stabilisation of the country. The BiH Constitution, therefore, is not “a solid foundation for legal shaping of a self sustainable, reproductive state community”; it encourages “political and ethnic conflicts” and it lives “off arbitrary chaos of nationalistic ideas of the leading political forces”.⁶⁵ The division into two militarily independent Entities, as stated further, “recognised” and “legalised” the results of the war,⁶⁶ which places priority on collective rights over individual rights. The entire organisation of the State and public authority, as claimed, has nationalistic features, and the constitutional act is nothing but a pact between states, whereby the BiH Constitution lacks features of a constitution as a legal act of the state.⁶⁷ A leitmotif that runs through the Constitution is the coupling of ethnicity with political identity. In this way the State is being divided into three peoples, thereby supporting the State structure still based on nationalism, which is not in accordance with the idea of human rights as individual rights.⁶⁸

Besides, it is claimed that the BiH Constitution meets conditions for its quashing, as it came into being under the threat of force⁶⁹ and by violating ius cogens;⁷⁰ the reason being for the latter, first and foremost, that the territorial division of the country consequently legitimised ethnic cleansing. It is acknowledged nevertheless that the BiH Constitution, owing to its recognition in practice, is valid in international law. Violation of constitutional law, which was in force at the time of entering into the agreement, and violation of ius cogens, may be justified by the difficult international and legal situation that the RBiH was in at the time of the signing of the agreement.⁷¹ Regardless of its shortcomings at the time of its creation, it is nevertheless claimed that the BiH Constitution is an ineffective and only temporarily valid legal act, as the BiH Constitution proved in practice completely inefficient in consolidating BiH as an entity of international law; therefore, as claimed, the BiH Constitution is “an absolute failure of experimental enactment of a constitution”.⁷²