The constituent status of Bosniaks, Croats, Serbs and Others

Article 1 of the RS Constitution (the version related to Amendment XLIV, according to which “the Republika Srpska […] shall be the State of Serb people and of all its citizens”, was one of the central issues challenged in the procedure for review of constitutionality. A counterpart of Article 1 of the RS Constitution was Article I.1(1) of the FBiH Constitution, the version related to Amendment III. It read: “Bosniacs and Croats as constituent peoples, along with Others, and citizens of the Federation of Bosnia and Herzegovina, in the exercise of their sovereign rights, transform the internal structure of the territory of the Federation of Bosnia and Herzegovina defined in Annex II to the General Framework Agreement for Peace in Bosnia and Herzegovina, so that the Federation of Bosnia and Herzegovina shall be composed of federal units with equal rights and responsibilities.”

The applicant held that the principle of constituent status of all three peoples (the last paragraph of the Preamble of the BiH Constitution) throughout the BiH territory was thereby violated; in the applicant’s view, the Republika Srpska could not be established as a national State of the Serb people.¹⁸⁹ The statehood of Bosnia and Herzegovina had always been founded on the equality of the peoples, religions, cultures and citizens that have been traditionally living on its territory.¹⁹⁰ In addition, throughout the entire history of BiH, ethnic criteria had never been applied to organise the State structure, nor had territories been an element of the constitutional order.¹⁹¹ According to the 1991 census, a multi-ethnic society existed across the entire territory of BiH.¹⁹² The applicant asserted that the problem in the BiH Federation was partly “amortised” through a guarantee of equality for the category of “Others” and, in particular, through their proportional representation in all institutions of the Federation.¹⁹³ On the other hand, the one nation exclusive rights under Article 1 of the RS Constitution would prevent the realisation of fundamental rights of all refugees and displaced persons to return to their homes of origin, as stipulated under Article II.4 of the BiH Constitution, and thereby it would prevent a restoration of the ethnic structure that had been disturbed by the armed conflict and ethnic cleansing.¹⁹⁴ The applicant asserted that the same applied to Article I.1(1) of the FBiH Constitution.¹⁹⁵

The first task of the BiH Constitutional Court in this case was to clarify the range of meaning of the notion “Bosniaks, Croats and Serbs, as constituent peoples (along with Others)”, as stated in the Preamble of the BiH Constitution. Neither the Federation of BiH nor the Republika Srpska shared the applicant’s view according to which Serbs are also a constituent people in the Federation of BiH and that Bosniaks and Croats are also constituent peoples in the Republika Srpska.¹⁹⁶

The Republika Srpska argued that, given the adjective Srpska in its name, there could be no intention that the constituent people status be extended to the other two peoples.¹⁹⁷ In addition, there was nothing to support that the constituent status of peoples could be treated as the notion of “collective rights” since it was not established anywhere in the normative part of the BiH Constitution as a legal principle or a norm related to the constituent status.¹⁹⁸ The paragraph, of itself, in the Preamble does not necessarily mean that there is constituent status of all the peoples “on the entire territory” and in both Entities, as claimed by the applicant; namely, one people are constituent also if they are constituent people in one of the Entities, and thereby they are also constituent in one part of the State territory.¹⁹⁹ It is further claimed that the time sequence and the modalities of the signing of the text of the Constitution left no room for doubt that only the Serb people constitute the Republika Srpska.²⁰⁰ The position of the people as a constituent people is limited exclusively to the territory and to the competence of the joint State institutions but not to the original responsibilities of the Entities.²⁰¹

The BiH Constitutional Court’s view does not coincide with this legal view. As to the relevant paragraph of the Preamble in connection with the institutional provisions of the BiH Constitution, as well as based on the genesis of the BiH Constitution and the objectives of the Peace Agreement in general, it follows that Article 1 of the RS Constitution is in violation of the constituent status of Bosniaks and Croats. In addition, Article 1 of the RS Constitution is in breach of the positive obligations of the Republika Srpska to safeguard the return of refugees pursuant to Article II.3(m) i.e., Article II.5 of the BiH Constitution.²⁰² Moreover, the designation of Bosniaks and Croats as constituent peoples under the FBiH Constitution gives unjustified privileges only to these two peoples within the Federation’s institutional structures.²⁰³

In its subsequent decisions, the BiH Constitutional Court upheld its interpretation of paragraph 10 of the Preamble. In Case No. U 4/05, it is stated that the principle of a multi-ethnic state is one of the vital constitutional principles and, in particular, taking into consideration the national demographic structure evident in the statistics related to the 1991 census.²⁰⁴ As a result of the characterisation of Bosniaks, Croats and Serbs as constituent peoples, none of the mentioned groups has been declared a majority by the Constitution; it is more precise that the constituent peoples are named as equal groups so that any special privilege for one or two of these peoples or any domination thereof in governmental structures is prohibited.²⁰⁵