Commentary of Steiner/Ademović

“Bosniaks, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows”

Line 10 of the Constitution deals with the relation between ethnocracy and civil society, and thus perhaps the most important key for peace in Bosnia and Herzegovina. We have already mentioned controversies relating to the legitimacy of the BiH Constitution.¹⁸⁷ In Case No. U 5/98 – III Partial Decision, the Constitutional Court of BiH adopted the conclusion, based on the following sentence of the Preamble “Bosniaks, Croats and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina”, that the Constitution of Bosnia and Herzegovina determines that Bosniaks, Croats and Serbs are the architects-framers of the Constitution.

In February 1998, Mr. Alija Izetbegović, then the Chair of the Presidency of BiH, instituted proceedings in Case No. U 5/98 which probably had the most far-reaching impact on the State organisation and joint social and political activity of its most powerful peoples. In these proceedings, the Constitutional Court adopted four partial decisions which become known to the general public as the Decision on the Constituent Peoples.¹⁸⁸ In the proceedings relating to Case No. U 5/98, the applicant claimed that a number of provisions of the Entities’ Constitutions were in violation of the BiH Constitution.

Observations to the provisions of the Constitution of the Republika Srpska. In the proceedings for review of constitutionality, the applicant first challenged the provisions of the Preamble of the Constitution of the Republika Srpska, which stated that the Serb people, inter alia, had the right to self-determination, “respecting for their struggle for freedom and State independence”, and that the Serb people manifest “the will and determination to link their State with other States of the Serb people”. The applicant claimed that the wordings, according to which “the Republika Srpska is a State of the Serb people and of all its citizens” (Article 1), and the term “border” between the Republika Srpska and the Federation (Article 2.II), were contrary to the provisions of the BiH Constitution. Furthermore, the applicant challenged the right of the Republika Srpska to “establish special parallel relationships with the Federal Republic of Yugoslavia and its Member Republics”, and the competence of the Republika Srpska to regulate and ensure “co-operation with the Serb people outside the Republic” (Article 68, paragraph 1, item 16); furthermore, the applicant challenged: the wording relating to the prohibition of “extradition” of citizens of the Republic (Article 6, paragraph 2); the provision proclaiming the Serbian language and Cyrillic alphabet as official (Article 7); and material State support to the Orthodox Church and co-operation between the State and the Orthodox Church in all fields, in particular for the preservation, fostering, and development of cultural, traditional and other spiritual values (Article 28 paragraph 4). The applicant also challenged the provision which provided that foreign citizens and stateless persons may be granted “asylum” in the Republika Srpska (Article 44, paragraph 2), and the clause stating that in the case of differences between the provisions on rights and freedoms in the Republika Srpska Constitution and those in the BiH Constitution, the provisions which are more favourable to the individual shall be applied (Amendment LVII, item 1, which supplements the Chapter on Human Rights and Freedoms). The applicant also challenged different forms of property, the holders of property rights, and the legal system relating to the use of property (Article 58, paragraph 2, Article 68, item 6 and provisions of Articles 59 and 60). The applicant further claimed review of the authority of the President of the Republika Srpska to perform duties related to defence, security, and relations with other States and international organisations (Article 80 as modified by Amendment XL, item 1); to appoint, promote, and recall officers of the Army, judges of military courts, and Army prosecutors (Article 106, paragraph 2) and to appoint and recall heads of missions of the Republika Srpska in foreign countries and propose ambassadors and other international representatives of Bosnia and Herzegovina from the Republika Srpska (Article 80 as modified by Amendments XL and L, item 2); the authority of the Government of the Republika Srpska to establish the Republic’s missions abroad (Article 90 as supplemented by Amendments XLI and LXII); establishment of a National Bank of the

Republika Srpska (Article 98); and the National Bank’s competence to propose statutes relating to monetary policy (Article 76, paragraph 2 as modified by Amendment XXXVIII, item 1, paragraph 2). Finally, the applicant challenged the constitutionality of the authority of the Republika Srpska to adopt acts and undertake measures for the protection of the Republic’s rights and interests against acts of the institutions of Bosnia and Herzegovina or the Federation of BiH (Article 138 as modified by Amendments LI and LXV).

Observations to the provisions of the Constitution of the Federation of Bosnia and Herzegovina. As to the Constitution of the Federation, the applicant objected to the fact that (only) Bosniaks and Croats are constituent peoples (Article I.1(1)), that (only) Bosnian and Croatian are official languages in the Federation (Article I.6(1)), regulation relating to dual citizenship (Article II.A.5 (c) as modified by Amendment VII), the Federation‘s responsibility to organise and conduct the defence of the Federation (Article III.1(a)) and the task of the President of the Federation to appoint heads of diplomatic missions and military officers (Article IV.B.7 (a) and Article IV.B.8).