Structures of multiethnic democratic State authority in Bosnia and Herzegovina

Collective equality of all three constituent peoples, as well as their respective right of veto, used in the event when their vital national interest is threatened, constitutes one of the fundamental elements of the structure of a multiethnic democratic State authority.

In a very important decision of the Constitutional Court of BiH, No. U 5/98- III, collective equality of the three constituent peoples was derived from the combination of lines 10 and 3 of the Preamble of the Constitution of BiH, as well as from Articles I.2 and II.4 of the Constitution of BiH. Thus, line 3 of the Preamble of the Constitution of BiH is linked to the entire Constitution of BiH, particularly with its ethnic structure, whereby the term “democratic, multiethnic state” is being used. The Constitutional Court of BiH shapes the constitutional equality of the three peoples as a concrete and functional concept.¹³⁰

Constitutional equality of the three peoples contains collective rights, which are not restricted territorially; they are applicable in both Entities in an equal manner,¹³¹ irrespective of whether the mentioned peoples constitute a de facto minority or majority in one Entity. Further, collective rights relate to joint participation and influence on the State institutions, which are manifested through quotas prescribed by the Constitution. Quotas affect the electoral right, as well as the process of decision-making in the State institutions. The constituent peoples’ right of veto is narrowly linked with the constitutional mechanism of vital interest that the peoples refer to. However, it shall be recognised only if the equality of constituent peoples is violated.

According to the position of the Constitutional Court of BiH, the right to representation in institutions and participation in the State authorities is applicable, in principle, only to such institutions and procedures as explicitly provided for by the very Constitution of BiH.¹³² Even more so, such provisions must be narrowly, i.e., restrictively interpreted, for, otherwise, they shall be contrary to the principle of prohibition of discrimination. Taking into account that this principle has been strictly stressed in the decisions of the Constitutional Court of BiH Nos. U 5/98-III (equality of constituent peoples), U 7/05 (participation of the constituent peoples in the city councils of Istočno Sarajevo and Banja Luka) and U 10/05 (Public Broadcasting System), such a principle creates a certain tension as far as the reasoning stated in decisions Nos. U 4/05 (participation of the Serbs in the City Council of the City of Sarajevo), also,¹³³ broadly speaking, U 44/01 (names of the cities/towns), U 4/04 (symbols) and U 8/04 (languages in higher education). In Decision No. U 4/05 the Constitutional Court of BiH confirmed that the Statute of the City of Sarajevo is unconstitutional, as Serbs have not been given equal treatment and position as the other two peoples. In the Decision No. U 7/05 the Constitutional Court of BiH decided that, from the constitutional viewpoint, it is not necessary that the city statutes of Istočno Sarajevo and Banja Luka provide for existence of special privileged positions of the members of the constituent peoples. In particular, it is not possible to conclude that the Constitution of BiH provides for a general institutional model, which may be carried over to the level of the Entities.¹³⁴ This contradiction can be resolved by taking into account that the Statute of the City of Sarajevo explicitly gave a privileged position to Bosniaks and Croats, whereby Serbs were discriminated against, which cannot be claimed for Istočno Sarajevo and Banja Luka.

Therefore, structures of a multiethnic democratic State show that there is a certain compromise which should prevent both the total assimilation of peoples, i.e., ethnic communities, and their strict separation.¹³⁵ Territorial division must not serve as an instrument for ethnic separation; it must contribute towards mutual ethnic coexistence, peace and integration in the State and society. Thus, representatives of the three constituent peoples elected by certain polling precincts shall not be treated as “ethnic” representatives, as they represent all citizens who live in the territory of the respective precinct.¹³⁶ Accordingly, ethnic participation must not turn into ethnic domination. This means that an absolute or unrestricted right of veto must not be recognised.¹³⁷