Comments by Prof. Dr. Joseph Marko, the judge rapporteur in the Case No. U 5/98 (line 10)

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

The importance of line 10 of the Preamble to the BiH Constitution was shown for the first time in Case No. U 5/98 of the BiH Constitutional Court. It was the legal basis for one of the most significant decisions of the BiH Constitutional Court concerning the fundamental institutional structures of the state’s system of government based on the interpretation of the notion “status of constituent people”. The mentioned Decision, formally and technically, is divided into 4 partial decisions and it is published in the Official Gazettes of the State. In addition, it should be underlined that the third partial decision of 1 July 2000, generally known as “decision on the constituent status of peoples”, is generally recognised in academic literature.

The basis of this decision is the provision of Article XII(2) of the BiH Constitution, which provides that the Entities are obliged to conduct an amendment procedure and alter their Constitutions in order to ensure conformity with the Constitution of BiH, no later than three months from the date on which the Dayton Agreement enters into force. The applicant in Case No. U 5/98 held that a number of provisions of the Constitutions of the Entities were inconsistent with the BiH Constitution.

Objections as to the Constitution of the Republika Srpska In the proceedings for review of constitutionality, the provisions of the Preamble to the RS Constitution were challenged in part where it is stated, inter alia, that the Serb people have the right to self-determination, “respecting the centuries-long struggle of the Serb people for freedom and State independence”, and “taking into account the natural and democratic right, will and determination of the Serb people from the Republika Srpska to link its State completely and tightly with other States of the Serb people”. In addition, the applicant held that the wording according to which the Republika Srpska is “a State of the Serb people and of all its citizens” (Article 1), as well as the term “the border” between the Republika Srpska and the Federation (Article 2.II) were in contravention of the provisions of the BiH Constitution. Furthermore, the applicant disputed the right of the Republika Srpska to establish “special parallel relationship with the Federal Republic of Yugoslavia and its Member Republics” (Article 68, paragraph 1, item 16), the wording that a citizen of the Republika Srpska cannot be extradited (Article 6, paragraph 2), the declaration that the Serbian language and Cyrillic alphabet are the official language and alphabet (Article 7), as well as the material support by the State for the Orthodox Church and cooperation 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). In addition, the applicant requested a review of the provision stipulating that foreign citizens and stateless persons may be granted “asylum” in the Republika Srpska (Article 44, paragraph 2), the clause according to which, in the case of differences between the provisions on rights and freedoms in the RS Constitution and those of the BiH Constitution, the provisions which are more favourable to the individual shall be applied (the BiH Constitution amended by Amendment LVII, item 1 which supplements the Chapter on Human Rights and Freedoms). Moreover, the applicant challenged different forms of property, the holders of property rights, and the legal system relating to the use of property (Article 58 paragraph 1, Article 68 item 6 and the provisions of Articles 59 and 60). Also, it was requested that the authority of the RS President be reviewed as regards his powers 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); to appoint and recall heads of missions of the Republika Srpska in foreign countries and to 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); and the authority of the Government of the Republika Srpska to establish the Republic’s missions abroad (Article 90, supplemented by Amendments XLI and LXII). Next, according to the applicant, the establishment of the National Bank of the Republika Srpska (Article 98) and its competence to propose statutes relating to monetary policy (Article 76, paragraph 2 as modified by Amendment XXXVIII, item 1, paragraph 2) were not consistent with the BiH Constitution. Finally, the applicant challenged the constitutionality of the power 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).

Objections as to the Constitution of the Federation of Bosnia and Herzegovina As to the Constitution of the Federation of BiH, 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)), the 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 of BiH (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).

As a precondition necessary for linguistic clarification of the normative content of the notion “constituent peoples”, the Constitutional Court had to answer affirmatively the issue raised as to whether the preamble to the constitution, as such, can generally have a normative character. Namely, this issue was raised as the representatives of the People’s Assembly of the Republika Srpska, pointing to the related viewpoint of Hans Kelsen, negated the normative character of the Preamble and, accordingly, they requested that the applicant’s request be rejected on formal grounds, i.e., due to lack of legal relevance of the provisions referred to in the request concerned.

However, the BiH Constitutional Court did not share Kelsen’s opinion but it concluded in the two-step reasoning that some lines of the Preamble have a normative content, which is of legal relevance. Pointing to the formal character of the Dayton Constitution as an international agreement, the BiH Constitutional Court dismissed the allegations of the representatives of the People’s Assembly of the Republika Srpska that the Preamble was not made a part of the BiH Constitution, as the BiH Constitution comprises only the provisions which have a normative character. Namely, the allegations of the representatives of the People’s Assembly of the Republika Srpska were in contravention of the explicit provision of Article 31 paragraph 2 of the Vienna Convention of the Law on Treaties, which stipulates the following:

“The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text and including its preamble and annexes: […].”²³⁷

Thus, in a formal sense, it was clarified that the Preamble and its provisions are an integral part of the BiH Constitution and, consequently, they constitute the standard of judicial review for the BiH Constitutional Court. The next analysis related to the clarification of the content of the notion “status of constituent people” in order to review the constitutionality of the challenged provisions of the Entities’ constitutions. Given that the “historical” intention of the contracting parties in Dayton, despite the judge rapporteur’s enormous efforts in the present case, could not be determined, the majority of the members of the BiH Constitutional Court decided to try to determine the meaning of this notion through a systemic interpretation, particularly taking into account the part of the BiH Constitution related to the organisation of the State. Based on such methods of interpretation, the BiH Constitutional Court derived from the Dayton Constitution three general normative principles, as well as a number of other normative principles, which further elaborated those general ones. In addition, the BiH Constitutional Court, with a double meaning of the word, “reasoned” the basic normative content of the constitutional principles by referring to the case- law of the Supreme Court of Canada and the Supreme Court of Switzerland. Thus, the Supreme Court of Canada, in the case “Reference re Secession of Quebec”, established as follows: “[…] Although these underlying principles are not explicitly made part of the Constitution by any written provision, other than in some respects by an oblique reference in the preamble to the Constitution Act, it would be impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood. The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Thus, the principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments.”²³⁸

Finally, the BiH Constitutional Court dismissed the objection of the representatives of the People’s Assembly of the Republika Srpska that the provisions of the Preamble to the BiH Constitution had no normative character and that the BiH Constitutional Court therefore could not take those provisions as a standard of judicial review, and that it should declare the request inadmissible.

The three general constitutional principles, which in the Decision were derived from the provisions of the Preamble to the BiH Constitution in conjunction with the provisions of the BiH Constitution relating to the organisation of the state, are presented below. These three general constitutional principles have considerably developed the BiH Constitution.

1. The principle of multi-ethnicity: given the correlation between the provisions of Article I.2 of the Dayton Constitution, which stipulate that Bosnia and Herzegovina shall be a “democratic state”, and line 3 of the Preamble to the BiH Constitution, which defines “a pluralist society” as a precondition for a democratic system of government, the BiH Constitutional Court derived the principle that Bosnia and Herzegovina – by territorial delimitation through the establishment of two Entities, where the Federation of Bosnia and Herzegovina is further divided into 10 cantons – corresponds to a model of a multi-ethnic state, where the territorial delimitation must not result in upholding the effects of ethnic cleansing during the armed conflict or, moreover, afterwards, in institutional segregation and national homogenisation within the State institutions.²³⁹ Particularly, based on the correlation between the provisions of Article II.5 of the Dayton Constitution and Annex VII and its provisions relating to the return of refugees and displaced persons, the BiH Constitutional Court concluded that an overall objective of the Dayton Peace Agreement was the re-establishment of the multi-ethnic society which had existed before the armed conflict.²⁴⁰

2. Principle of collective equality of constituent peoples: as it follows from the constitutional organisational principles related to the composition of the Presidency and a second chamber of the BiH Parliament, i.e., the House of Peoples, it was essential for the authors of the Dayton Agreement to ensure that the aforementioned State authorities effectively participate in political decision-making processes not only through individual equality in respect of the electoral right but also through the collective ethnic representation of the three constituent peoples. Taking into account the aforementioned, the BiH Constitutional Court came to the conclusion that the notion “constituent peoples” comprises also the principle of collective equality of these three ethnic groups.²⁴¹ However, this notion encompasses specific rights and obligations. Thus, the BiH Constitutional Court first provides the reasoning that the principle of collective equality poses an obligation on the Entities to comply with the principle prohibiting discrimination against any member of the three constituent peoples, in particular against these constituent peoples which are, de facto, in the position of ethnic minority in the respective Entity.²⁴² Second, the principle of collective equality prohibits any special privilege for any of the three constituent peoples by which one or two of these peoples recognise any special or additional rights.²⁴³ Furthermore, the BiH Constitutional Court, based on the aforementioned principle, concludes that the application of the special rights of the three constituent peoples, which are recognised by the Dayton Constitution, are justified only at the State level by the force of the Dayton Agreement itself, and that such rights cannot be transferred without special justification to the Entity level or local level of government.²⁴⁴ Besides, it follows from the principle of collective equality of the constituent peoples that the category of “Others” cannot be a substitute for guaranteeing the special collective rights of one of the three constituent peoples.²⁴⁵ On the other hand, the BiH Constitutional Court tried to face the issue related to the tension between the individual and collective rights and it concluded that a total exclusion of persons from the representation system gave rise to a violation of the individual political right, so that, in any case, the category of “Others” had to be included into the representation systems in order to prevent this total exclusion of individual rights.²⁴⁶

3. Based on the correlation between the provisions of Annex 7 to the Dayton Peace Agreement on refugees and displaced persons and obligation to secure the equality of all citizens, as individuals, before the law in accordance with Article II(4) of the Dayton Constitution, the Constitutional Court, finally, deduced the rule on prohibition of discrimination as follows:²⁴⁷

(a) The prohibition of de iure discrimination;

(b). The prohibition of de facto discrimination, i.e., the prohibition of indirect discrimination;

(c). The prohibition of upholding the effects of past de iure discrimination, where the Entities, based on the correlation between the principle prohibiting discrimination and the provisions of Annex 7 to the Dayton Peace Agreement, are also under a positive obligation “to create in their territories political, economic, and social conditions conducive to the voluntary return and harmonious reintegration of refugees and displaced persons, without giving preference to any particular group.”²⁴⁸

Having established these three basic constitutional principles, and taking into account the specific context of BiH, the BiH Constitutional Court concretised the aforementioned principles in relation to the notion of “constituent peoples” as follows:

1. The right of the Serb people to self-determination mentioned in the Preamble to the RS Constitution was declared unconstitutional;²⁴⁹

2 One cannot identify territory with ethnicity and, therefore, a general model of ethnic representation of the constituent peoples cannot be derived from the Dayton Constitution;²⁵⁰

3. Although the Dayton Constitution almost ideally matches a model of concordant democracy (Konkordanzdemokratie), the principle of collective equality prohibits one or two of the constituent peoples from being granted absolute veto-power;²⁵¹

4. In the fourth decision in Case No. U 5/98 of 19 August 2000, the Constitutional Court finally decided that the languages of the constituent peoples, as official languages, must be used on an equal footing at all administrative-territorial levels.

The BiH Constitutional Court applied these principles in a number of its subsequent decisions to various constellations of ethnic discrimination.

An issue of ethnic symbols was raised in two cases. In Case No. U 44/01, the BiH Constitutional Court concluded that the adjective “Serb”, which was added to the names of a certain number of towns in the RS, had a discriminatory character, as the change of names of certain towns during the armed conflict when the ethnic cleansing had occurred demonstrated a clear intention to emphasise that they were “purely” Serb towns. Moreover, this ethnic and national labelling clearly signals that it is necessary to maintain the ethnic territorial homogenisation, which also proves the competent authorities’ intention to prevent the return of refugees and displaced persons, contrary to the obligations under Annex 7 to the Dayton Peace Agreement. In this way, the BiH Constitutional Court applied the principle, which had already been established in Case No. U 5/98, that the effects of past de iure discrimination may not be maintained. In Decision No. U 4/04, the laws of the Republika Srpska and the Federation of Bosnia and Herzegovina relating to the coat of arms and flag and the laws of the Republika Srpska relating to the anthem and the Family Patron-Saint’s Days and Church Holidays were challenged before the BiH Constitutional Court on the ground of alleged ethnic discrimination. The BiH Constitutional Court granted the applicant’s request and declared the respective symbols unconstitutional and rendered the challenged laws ineffective as they provided privileges only to certain constituent peoples.

The second set of decisions of the BiH Constitutional Court related to the regulations, which provided an institutional guarantee of a minimum representation of the constituent peoples at the local level and at the level of the Entities. In its Decision No. U 4/05, the BiH Constitutional Court declared unconstitutional the Statute of the City of Sarajevo given that it provided the minimum representation of Bosniaks, Croats and “Others” in the City Council of the City of Sarajevo, while Serbs were excluded. Referring to the principle of collective equality of the three constituent peoples, the BiH Constitutional Court refused the argument that Serbs, in any case, could be represented through the category of “Others”, as the mentioned principle prohibited that Serbs were subsumed under this category. In another similar case, which related to the constitutionality of the statutes of the cities of Banja Luka and Istočno Sarajevo, the BiH Constitutional Court dismissed the request for minimum representation of Bosniaks and Croats. However, this decision, which, on the face of it, appears to be in contradiction to the former constitutional and judicial case-law, may be explained. The BiH Constitutional Court, in its Decision No. U 5/98, derived from various electoral mechanisms for the Presidency of BiH and the Houses of the Parliamentary Assembly of BiH the principle that there was no identification of territorial and ethnical representation. Thus, the BiH Constitutional Court established that the Dayton Constitution did not require a uniform model of political representation at all administrative-territorial levels. If, in any of the cases, the statute of the city does not contain mechanisms to secure privileged representation of the constituent peoples, then there is no obligation under the BiH Constitution to provide such a mechanism. However, in case such a mechanism is provided, as it was in the case related to the Statute of the City of Sarajevo, then again the principle of collective equality of the constituent peoples applies so that a failure to show regard for one of the constituent peoples gives rise to discrimination. However, the Constitutional Court failed to consider the statutes of the cities of Banja Luka and Istočno Sarajevo in relation to indirect discrimination.

Two further decisions taken by the BiH Constitutional Court related to a concretisation of the notion of “vital national interest” of constituent peoples. In Decision No. U 8/04, the Croat Caucus in the House of Peoples of the Parliamentary Assembly of BiH claimed that the Draft Framework Law on Higher Education in Bosnia and Herzegovina was destructive to a vital national interest of the Croat people, as the Draft Law provided no possibility for establishing a State university, wherein teaching would be exclusively in the Croatian language. The BiH Constitutional Court established a violation of a “vital national interest” of the Croat people in the case concerned. However, afterwards, by stating that the vital national interest does not permit that any language be ruled out but rather requires the equal use of the three official languages in higher education institutions, the BiH Constitutional Court turned “upside down” the allegations and, thereby, the definition of vital national interest given by the Croat Caucus. In Case No. U 5/06, the Delegates of the Croat Caucus once again challenged the constitutionality of the Law on the Public Radio-Television System of Bosnia and Herzegovina as the mentioned law did not permit the establishment of a radio and television system exclusively in the Croatian language. The BiH Constitutional Court dismissed the request and reasoned that the challenged law neither discriminated nor favoured any of the three official languages.

As a result of the aforementioned proceedings, it may be stated that the BiH Constitutional Court specified the principle of collective equality as an obligation on the equal use of the three official languages in public life, as it does not permit discrimination or privileges of one of the three languages through institutional segregation. Therefore, collective equality must not be organisationally applied in terms of the well-known formula of the US Supreme Court, which was established in the case Plessy v. Ferguson: “Separate but equal”. On the contrary, instead of institutional segregation, collective equality requires a certain combination of autonomy and integration in order to advance the languages and improve social cohesion. In addition, in Case No. U 42/05, taking the principle of equality of the official languages as a starting point, the BiH Constitutional Court obliged the RS competent authorities to publish once again the Agreement on its special parallel relationship with the Federal Republic of Yugoslavia in the “Official Gazette of the RS”, but this time in all three official languages in the RS.

Furthermore, a number of decisions related to the issue of a strict ethnic system of a distribution of power in respect of members of the Presidency and the second chamber of the Parliamentary Assembly of BiH. Namely, such a system ex constitutione excludes citizens of BiH who do not identify themselves as one of the three constituent peoples from their passive electoral right. By the Dayton Constitution itself, collective equality of the constituent peoples is connected with a violation of the basic political right in a democratic system and, thereby, it gives rise to a paradoxical question as to whether the constitutional right is unconstitutional. In Decision No. U 5/04, Sulejman Tihić, the then-Chair of the Presidency of Bosnia and Herzegovina, lodged a request for review in which he requested that the BiH Constitutional Court examine whether the provisions of Articles IV and V of the Dayton Constitution were in conformity with the standards set forth in Article 3 of Additional Protocol No. 12 to the ECHR, given that the ECHR, pursuant to Article II of the Dayton Constitution, has “priority over all other laws”. The BiH Constitutional Court rejected the request as inadmissible. The majority of the members of the court reasoned that the ECHR in the BiH legal system is not superior to the Dayton Constitution as its authority and direct application stem from the Dayton Constitution itself. Thus, it is out of the question that the ECHR could be used as a standard for review of the provisions of the Dayton Constitution. In Decision No. U 13/05, Sulejman Tihić, a Member of the Presidency of BiH, lodged another request whereby he sought a review of certain provisions of the Election Law of Bosnia and Herzegovina, which de iure prevented certain citizens from exercising their passive electoral right (for example, all “Others”). Once again, the majority of the members of the court rejected the request as inadmissible, as the discriminatory provisions of the Election Law, in an identical manner, arose from the constitutional provisions. In her interesting dissenting opinion, Judge Constance Grewe argued against the reasons given by the majority of the members of the court, pointing to fact that “the problem” in the case concerned was not just ethnic proportionality but the identification of territory and ethnicity, which gave rise to the discriminatory effect related to the deprivation of the right to vote and to stand for election. This deprivation was perhaps justified in 1995 when the Dayton Agreement was made. However, subsequently, when Bosnia and Herzegovina ratified Additional Protocol No. 12 to the European Convention, it could not be justified any longer. In Decision No. AP 2678/06, a candidate for election to the Presidency of BiH sought review of a decision taken by the Central Election Commission, by which he was deprived of the right to stand as a candidate for election. Surprisingly, this time the BiH Constitutional Court declared that it had competence to take a decision in the relevant case. However, the majority of the members of the Constitutional Court dismissed the appeal and reasoned that the deprivation of the right was justified by the situation related to the ethnic conflict in Bosnia and Herzegovina. Once again, Judge Constance Grewe, in her dissenting opinion, offered the arguments contrary to the decision of the majority of the BiH Constitutional Court and underlined that the principle of a multi-ethnic State required that the territorial criterion in elections of members of the Presidency of BiH should be abolished, and that the Constitutional Court has competence to seek that the Parliamentary Assembly of BiH modify the challenged provisions of the BiH Constitution so that Bosnia and Herzegovina would be able to meet its international obligations. Two citizens of Bosnia and Herzegovina of Roma and Jewish ethnicity, respectively, namely Dervo Sejdić and Jakob Finci, filed applications in 2006 with the ECtHR,²⁵² seeking that a judgment be adopted against Bosnia and Herzegovina for depriving them of their right to be elected. In its amicus curiae opinion, the Venice Commission of the Council of Europe adopted a position in favour of the applicants, stating that the deprivation of members of the constitutional and legal category of “Others” of the right to be elected does not necessarily follow the principle of collective equality of the constituent peoples and, thereby, it is in violation of the obligation to comply with the principle of proportionality, developed by the ECtHR as a measure to be used in examining whether or not an interference with the rights and freedoms safeguarded by the ECHR is justified. The Venice Commission of the Council of Europe put forward an argument that the FBiH Constitution may serve as an example proving that the deprivation of the right to be elected and, thereby, a violation of Article 1 of Additional Protocol No. 12 to the ECHR, may be avoided by incorporating the constitutional category of “Others”, in addition to the constituent peoples, into the provisions on a proportionate composition of the Presidency of BiH. The case was taken over by the Grand Chamber of the ECtHR, which held a hearing on its admissibility and merits on 3 June 2009,²⁵³ and adopted a final decision on this issue on 22 December 2009. It was established that the provisions of the BiH Constitution relating to the House of Peoples of the BiH Parliamentary Assembly discriminate against the so-called Others within the meaning of Article 14 in conjunction with Article 3 of Additional Protocol No. 1 to the ECHR (paragraph 50). The Grand Chamber of the ECtHR concluded that, given the progress that the State has made since signing the Dayton Peace Agreement (paragraph 47), it is no longer justified to entirely deprive the members of the so-called Others of the right to be elected to this legislative house. There are no reasonable and justified reasons to support something like that. The ECtHR also concluded that the ECHR does not require complete abolition of the principle of parity power sharing and the introduction of the principle which would simply reflect the principle of “majority”, nor has the time come for something like that in Bosnia and Herzegovina. However, the ECtHR referred to the opinion of the Venice Commission, which offered a modality of retaining the principle of parity power sharing without excluding certain groups at the same time (paragraph 48). The ECtHR resorted to the same reasoning when it came to the deprivation of the so-called Others of the right to be elected to the BiH Presidency, whereby the Court referred to the provision of Article 1 of Additional Protocol No. 12 to the ECHR (paragraph 56 in conjunction with paragraphs 47-49).

The goal of this constitutional jurisprudence is to put an end to the situation in which the entire State organisation is strictly based on the concept of ethnic proportionality. In addition, when it comes to the issue of the organisation of the State and other public institutions, it seeks to create a balance within “the compromise formula”, which is already incorporated into line 10 of the Preamble to the BiH Constitution. Namely, this formula incorporates the ethnic principle, which is reflected through the categories of the constituent peoples and the category of “Others”, on the one hand, and the principle of individual equality of all citizens, on the other hand.