State-Building and Democratization in Bosnia and Herzegovina

Soeren Keil, Valery Perry

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317050254
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Peace & Global Development
• Index: Politics & International Relations

State Building and Democratization in Bosnia and Herzegovina details the post-Dayton evolution of the country over the last two decades. Carefully evaluating the successes and failures the book explores the slow progress of the democratization process and how key elites initially took hold of the state and its institutions and have successfully retained their grip on power, despite heavy international presence and reform attempts to counter-balance this trend. Bosnia and Herzegovina offers a useful lens through which to view international state-building and democratization efforts. International engagement here incorporated significant civilian and military investment and has been ongoing for many years. In each chapter international scholars and field-based practitioners examine the link between post-war events and a structure that effectively embeds ethno-national politics and tensions into the fabric of the country. These contributors offer lessons to be learned, and practices to be avoided whilst considering whether, as state-building and democratization efforts have struggled in this relatively advanced European country, they can succeed in other fragile states.

Chapter 1
Constitutional Reform Processes in Bosnia and Herzegovina: Top-down Failure, Bottom-up Potential, Continued Stalemate

Valery Perry

Introduction

While the need for constitutional reform in Bosnia and Herzegovina (BiH) has been acknowledged by many internal and external actors for well over a decade, since the failure of the 2006 “April Package” and the subsequent Prud and Butmir processes, expectations for comprehensive reform have receded to the point where it is rarely even discussed publically. Instead there has been a steady domestic—and primarily Republika Srpska (RS)-driven—resistance to integrative political reforms of any kind. The constitutional stagnation is facilitated by an apparent American willingness to cede policymaking on BiH’s political future to the European Union (EU), and an EU aversion to demanding integrative reforms as a part of the enlargement process; in essence allowing domestic minimalist agendas regarding reform to prevail. Past efforts to compel (impose) or financially persuade (pay for) state integration through externally-driven institution-building have been replaced by a seeming acceptance of disintegrative realities. Cohesion and stability in BiH hinges on the hope that the magnetic power of Europe will somehow bind the post-Dayton construct together in some minimally functional way.

In such an environment, is constitutional reform still on the agenda? The need for “Sejdić-Finci” reform to ensure minimal compliance with the European Court of Human Rights (ECtHR) has changed from a chance to broadly remove discriminatory provisions in the constitution to a narrow exercise driven by leading party interests in maintaining the status quo—or even in accelerating the decline of functioning state institutions. Beyond Sejdić-Finci, there is almost no political discourse on constitutional reform.¹ Rather than seeking “big bang” packages, there is a sense that any reform will be incremental and piecemeal, starting (perhaps) with reform of the Federation’s constitution. While the US played a key role in the April Package and subsequent spin-offs, the notion of an externally-brokered deal is being replaced by a belief (or hope) that the EU accession process in itself will be sufficient to—if not resolve BiH’s structural problems—at least ensure minimal ability to function as a candidate country and eventual EU member state.

One is increasingly likely to hear the words “constitutional reform” not from external actors but from BiH civil society activists. There are increasing numbers of NGOs either talking about the issue in a broad academic sense or offering their own recommendations. While from 2005‒2009 the processes were nearly exclusively elite-driven, top-down and closed-door by nature, since 2009 there has been an increasing interest among international actors as well in promoting grassroots, bottom-up involvement in a long-term process of constitutional reform. Is a civil society approach to constitutional reform in BiH a practical way to move forward, a sign that external actors have given up on reform through the elites, or a side-show to avoid forcing difficult questions to the political center stage?

This paper will review the status of constitutional reform, with a focus on the shift from a top-down and comprehensive approach with a visible if not revolutionary goal at the end, to an incremental, bottom-up approach that is less definable for its imagined end goal than for its contribution to a process. Following a review of the arguments for reform, a summary of top-down efforts to date provides background on initiatives since 2006. This is followed by a review of general civil society development issues in BiH, and a review of bottom-up civic efforts to support constitutional reform. The chapter concludes that while civic efforts for reform are necessary, they will not gain traction in an environment in which nearly all of the domestic and international incentives for political behavior are focused on elite level actors who have no rational incentive to change the status quo.

BiH Constitutional Reform—Top-Down

The need for constitutional reform had been broadly recognized by international organizations and BiH observers alike for years, as efforts at reform and rationalization continuously met with the implications of the unwieldy and asymmetric Dayton constitution based on institutional overlap and inefficiencies that burden an already poor and feeble country. Institutional weaknesses were seen early on as having an impact on both functionality as well as the basic enjoyment of human rights and equality. As early as 1998, the Bosniak member of the BiH Presidency Alija Izetbegović filed a case with the BiH Constitutional Court challenging the legality of several provisions of the entity constitutions, and in particular the entity definitions of constituent peoples. At that point, the RS constitution recognized only Serbs as its constituent people, and the Federation (FBiH) constitution recognized only Bosniaks and Croats, grounding Izetbegović’s contention that the exclusion of some constituent peoples from the entity constitutions violated BiH’s constitution, which itself acknowledges BiH’s three constituent peoples (Case U 5/98). The Court found that all three peoples must be guaranteed equal status and rights throughout BiH, a decision made by international and Bosniak judges, with the Croat and Serb judges expressing critical reservations (ICG April 2002). Implementation of this court decision was ignored, as it challenged the ethnic preferences that some parties wanted to maintain, and it was only implemented after the Office of the High Representative (OHR)-driven negotiations and a final imposed decision (CoE SG 2002). This early example of attempted reform highlighted the resistance to changes that would reduce the ethnic preferences some BiH politicians sought to maintain.

Following some years of OHR-driven integrative state-reform efforts, the European Commission for Democracy through Law (the Venice Commission) issued a report in March 2005 on outstanding constitutional issues in BiH entitled The Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative. This assessment of the BiH constitution’s compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Charter of Local Self-Government provided an opportunity to comment on the constitution’s practicality, efficiency, rationality and non-democratic provenance (Venice Commission 2005). The Commission highlighted numerous issues of concern inherent in BiH’s constitutional arrangements, including the impact of an extraordinarily weak state, incapable of “effectively ensur[ing] compliance with the commitments of the country with respect to the Council of Europe and the international community in general.” Furthermore, the lack of precise conditions for the use of the vital national interest veto, the entity veto, and the House of Peoples was criticized, all of which can effectively delay or halt the legislative process at multiple stages (Bahtić-Kunrath 2011). Finally, the duplication of effort and competencies between the collective Presidency and the Council of Ministers was also highlighted as an area that needed improvement (Venice Commission 2005, 26–38). In addition, the Commission noted that BiH’s “Constitution was drafted and adopted without involving the citizens of BiH and without applying procedures which could have provided democratic legitimacy” (Ibid., point 6). It further concluded that BiH’s constitution would have to be changed to make the country fit for EU integration.

Similar observations have been made by independent BiH analysts. For example, the Foreign Policy Initiative (FPI), a Sarajevo-based policy organization, released a report entitled Governance Structures in BiH: Capacity, Ownership, EU Integration, Functioning State in 2007. The report identified governance challenges presented by the current state structure, including the implementation gap between state framework legislation and entity level implementation, and the phenomenon of institutional layering that accompanied the construction of state-level framework laws and competencies without an accompanying dismantling of lower level powers (FPI, 2007, 14). FPI recommended streamlined parliamentary processes in the spirit of the April package, clarification of state and entity competencies, the establishment of enforcement mechanisms to ensure lower-level compliance with state or joint policies, and a constitutional supremacy clause specifying that state law would prevail over all inconsistent entity legislation (Ibid., 20–21).

Moving beyond words and prescription, the most substantive policy effort to achieve meaningful and sweeping constitutional reform was unfolding in 2005 and 2006 (Sebastian 2007). What became known as the April Package began as a process of consultation among American diplomats and advisors with the leadership of eight ruling parties. After months of talks, a package of constitutional amendments was agreed upon, including an indirectly elected Presidency with one president and two vice-presidents, a stronger Council of Ministers with more clearly defined competencies and led by a Prime Minister, a larger Parliament including an enhanced House of Representatives and a reformed House of Peoples (limited to issues of vital national interest), two new state-level ministries (Agriculture, and Science and Technology) and a more streamlined and articulated agreement on the competencies held by the state and the entities (April Package 2006, Amendment I).

At the time of discussions many observers felt the reforms were too modest, though in hindsight and in light of the disintegrating political atmosphere since 2006 they are now appreciated as having been rather sweeping and significant. In spite of the agreement among the participating parties, the package ultimately failed by a narrow two-vote margin in the Parliamentary Assembly. While the process was accompanied by a minimal amount of broader consultation, there was limited effort to build a broader civic constituency for the proposed reforms (Hays and Crosby 2006). Ultimately, 16 parliamentarians voted against it, including six from SBiH (Party for Bosnia and Herzegovina), and five from the then newly-formed HDZ 1990 (Croat Democratic Union 1990).²

Following the failure of the April Package, there were two progressively less ambitious efforts at constitutional reform. The “Prud Process” from November 2008—January 2009, failed to generate concrete proposals other than some fundamental political principles for reform, and, with heavy US pressure, the first (and only) amendment to the BiH constitution—the incorporation of the Brčko District under the jurisdiction of BiH state institutions and the Constitutional Court (CoE PA 2010). The “Butmir Process” followed, as the US and the EU sought to resurrect some of the amendments included in the April Package, including increasing the powers of the House of Representatives and the Council of Ministers, decreasing the powers of the presidency, limiting the role of the House of Peoples, and creating a stronger executive with a prime minister capable of assuming most of the functions of the presidency (ICG 2009). The Butmir Process also failed to garner support among the parties, and it ended without agreement.

Why did these efforts all fail? There are many inter-connected explanations. BiH’s electoral calendar is generally thought to have affected the potential of all of these initiatives, making politicians less willing to compromise in order to ensure electoral support (ICG 2009, Sebastian 2011). The escalating zero-sum feud between Milorad Dodik and Haris Silajdžić that took off in 2006 poisoned the atmosphere for reform and compromise of any kind (Bilefsky 2009; Azinović, Bassuener and Weber 2011). The end result has been a period of time since 2006 characterized by political stalemate punctuated by regression.

A long saga that came to dominate debates on the need for constitutional reform is the so-called Sejdić-Finci reform issue. In December 2009, the ECtHR delivered its judgment in the Case of Sejdić and Finci vs. Bosnia and Herzegovina. The case challenged the inability of representatives of the Jewish and Roma communities (or any other non-constituent peoples) seeking election to BiH’s Presidency and House of Peoples—each of which is constitutionally limited to BiH’s three constituent peoples (Case of Sejdić and Finci 2009). The Court found that limiting participation in these bodies to just BiH’s constituent peoples constituted unjustified discrimination. In 2010, a commission was formed in parliament to seek to address this issue; however it was hobbled by procedural and quorum problems and had no results. A second Commission was formed in the autumn of 2011, including 13 Commission members representing BiH’s various political parties.

In 2011 the Commission agreed to very narrowly define its task to just addressing the reforms required for the House of Peoples (HoP) and the Presidency, to the chagrin of some parties (SDP, HDZ, SDA) who had hoped to use the forum to address some broader interests in constitutional reform. However even this circumscribed approach was hamstrung. A very minimalist, and some would say cosmetic reform to the HoP that would provide for two representatives of the others to be appointed to the Federation and one from the RS, failed to move forward as concerns about the Presidency reform remained deadlocked. A critical point of contention regarding the Presidency is the RS interest in continuing to have a directly elected presidency, while the Croat parties in the Federation broadly seek either an indirect election to avoid being “Komšić’d” again in the future, or their own electoral unit that would to some extent fulfill their interests in a third (Croat) entity.³ Some parties have also raised the issue of the lack of opportunity for cross-entity representation, or have noted the so-called Pilav case still pending decision at the ECtHR in Strasbourg.⁴ The Commission met in late 2011 and into 2012, and ultimately announced their inability to find a solution, handing the responsibility from the institutions to the parties. As of the end of 2014, there was no remedy.

Another issue that deserves mention is the international community’s increasing call for reform of the Federation. Since the signing of the Washington Agreement in 1994, this 51 percent of the country has been an unwieldy amalgam of 10 cantons that are either majority Bosniak, majority Croat or mixed. Each canton is further organized into municipalities, so the structure of the Federation government results in a three-tiered system (ICG 2010). The cumbersome Federation structure results in high costs for public administration, under-served citizens at the mercy of municipal and cantonal officials playin...