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Opinion
no. 203/2002 |
Or. fr. |
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(
OPINION
ON THE IMPLEMENTATION
OF DECISION u5/98 (“constituent peoples”)
OF THE
OF
by the amendments To the constitution
of the republika srpska
Adopted by the
at its 52nd Plenary Session
(
on the basis of comments by
Mr J.-C.
SCHOLSEM (
I. INTRODUCTION
1. By
letter dated 22 April 2002, Mr Dragan KALINIC, President of the National
Assembly of the Republika Srpska (R.S.) submitted to the Venice Commission a
series of amendments to the R.S. Constitution. The purpose of these amendments
is to bring the constitution into conformity with the decisions of the
Constitutional Court of Bosnia and Herzegovina, and more specifically with the
third partial decision in case U 5/98, on the “constituent peoples” issue (Doc.
CDL
(2000) 81).
The amendments presented to the Venice
Commission are the fruit of a general political compromise concluded on 27
March 2002, under the aegis of the High Representative, between the principal
political forces of Bosnia and Herzegovina in order to implement the aforesaid
decision of the Constitutional Court at the level of the two entities.
Subsequently, these amendments themselves
underwent certain changes. They have now been incorporated into the text of the
Constitution of the R.S., as published on the Internet site of the Office of
the High Representative.
The purpose of this opinion is not to
present an exhaustive, detailed picture of all these amendments. Indeed, the
vast majority of them call for no particular comment and are a faithful
reflection of the decisions of the Constitutional Court.
However, it may be interesting to place
the amendments in their general context, bearing in mind the positions
previously adopted by the Venice Commission (II), and then to highlight their
salient features (III).
II. CONTEXT OF THE AMENDMENTS TO THE
CONSTITUTION OF THE R.S. AND FORMER OPINIONS OF THE VENICE COMMISSION
2. In
its partial decision III in the U 5/98 (“constituent peoples”) case, the
Constitutional Court of Bosnia and Herzegovina declared unconstitutional
paragraphs 1, 2, 3 and 5 of the preamble to the Constitution of the R.S. and
the words “State of the Serb people and” in Article 1 of the same Constitution[1][1].
Similarly, the Court considered contrary
to the Constitution of Bosnia and Herzegovina (B.H.) the words “Bosniacs and
Croats as constituent peoples, along with Others” and the words “in the
exercise of their sovereign rights” in Article I.1(1) of the Constitution of the
Federation of Bosnia and Herzegovina (F.B.H.)[2][2].
The reasoning behind the decision of the
Court on the main issue is the following. The last paragraph of the preamble of
the Constitution of B.H. explicitly names the Bosniacs, the Croats and the
Serbs as constituent peoples. These constituent peoples must therefore enjoy
equal collective status throughout the territory of the state. It is not
possible, therefore, for two of these peoples (the Bosniacs and Croats in the
Federation) or one of them (the Serbs in the R.S.) to be designated as the only
constituent people(s) of the corresponding federal entity.
Preambular paragraphs 59 and 60 of the
Court’s decision are particularly enlightening in this respect:
“59. Even if
constituent peoples are, in actual fact, in a majority or minority position in
the Entities, the express recognition of Bosniacs, Croats and Serbs as
constituent peoples by the Constitution of B.H. can only have the meaning that
none of them is constitutionally recognized as a majority, or, in other words,
that they enjoy equality as groups. It must thus be concluded in the same way
as the Swiss Supreme Court derived from the recognition of the national
languages an obligation of the Cantons not to suppress these language groups
that the recognition of constituent peoples and its underlying constitutional
principle of collective equality poses an obligation on the Entities not to
discriminate in particular against these constituent peoples which are, in
actual fact, in a minority position in the respective Entity. Hence, there is
not only a clear constitutional obligation not to violate individual rights in
a discriminatory manner which obviously follows from Article II.3 and 4 of the
Constitution of B.H., but also a constitutional obligation of
non-discrimination in terms of a group right if, for instance, one or two of
the constituent peoples are given special preferential treatment through the
legal system of the Entities.
60. In
conclusion, the constitutional principle of collective equality of constituent
peoples following from the designation of Bosniacs, Croats and Serbs as
constituent peoples prohibits any special privilege for one or two of these
peoples, any domination in governmental structures or any ethnic homogenisation
through segregation based on territorial separation.”
3. It
is clear that the consequences of partial decision n° III were not limited to
removing from the Constitutions of the F.B.H. and of the R.S. the terms
declared unconstitutional. The very elaborate reasoning used by the Court to
reach its conclusion had to lead to a much more thorough – and politically
arduous – overhaul of the two Constitutions.
It is equally clear that from the legal
standpoint this revision presented itself in a fairly different light for the
Federation on the one hand and the R.S. on the other.
At Federation level, a large number of
provisions were based on the officially bi-ethnic structure of the State and
shared posts in the Presidency, the Government and the Upper House of
Parliament, for example, between Bosniacs and Croats alone.
This system was condemned by the decision
of the Court affirming the principle of equality of the three constituent
peoples throughout the territory of Bosnia and Herzegovina.
Concerning the R.S., on the other hand,
apart from the provision of principle, declared unconstitutional, proclaiming
the R.S. to be the State of the Serb people and of all its citizens, no other
constitutional provision established any privilege or advantage in favour of
this ethnic group. On the purely legal level, this constitution therefore
seemed to present the strictest neutrality.
4. In
view of this asymmetry, the practical implementation of the Court decision
could take two different forms, that one might summarise as follows.
The Court’s decision implies that if the
entities grant special rights to the “constituent peoples”, all three peoples
must enjoy that status in both entities. It does not ipso facto oblige the federated entities
to grant these special rights or mark this equality between groups. In other
words, it does not appear to exclude a purely individualistic approach to
rights, based on traditional citizenship criteria.
The Venice Commission studied this
question in its opinion CDL-INF
(2001)6, its 46th plenary meeting on 9 and 10 March 2001.
The Commission did not wish to give an
“authentic interpretation” of the Court’s decision, which would clearly have
been overstepping its powers. Nor did it wish to go into details of practical
solutions, which are to all intents and purposes purely a matter of political
preference. It should be noted here that these two provisos concerning the
opinion given in 2001 also apply to the present opinion.
In its opinion CDL-INF
(2001)6 the Commission pointed out that, the Federation, extending
constituent people status to the Serbs could result in an unwieldy system with
the risk of decisions being blocked and basic democratic principles being
flouted.
At the same time, while drawing attention
to the merits of an approach based on the individual citizen, the Commission
pointed out the limits of such an approach in the present political context. At
the very least this solution seemed premature and not really in tune with the
real aspirations of most of the population, particularly the minority groups.
It is interesting to note that the
Commission actually based itself on the example of the R.S., whose seemingly
neutral and citizen-based constitution and legislation nevertheless gave rise
in practice to massive, systematic discrimination against non-Serbs.
However, the Commission did not recommend
extending mechanisms establishing the collective equality of the constituent
peoples to the R.S. Aware of the limits of a purely formal approach to the
principle of non-discrimination, especially in the context of the R.S., it
proposed setting the authorities of the R.S. positive obligations in terms of
equality. Mechanisms to verify the efficacy of these positive obligations were
also envisaged.
5. The
Venice Commission continued to contribute to thinking in this field through the
Task Force set up by the High Representative. The results of the Task Force’s
work are reported in document CDL
(2001)23. The Task Force envisaged,other options, the setting up of
“Constitutional Commissions” in the two entities, to watch over the vital
interests of the constituent peoples. These Commissions were effectively
established by decision of the High Representative on 11 January 2001. In many
respects they prefigure the solutions presented in the amendments to the
Constitution of the R.S. which are now before the Venice Commission.
III. SALIENT FEATURES OF THE AMENDMENTS TO THE
CONSTITUTION OF THE REPUBLIKA SPRSKA
6. As
stated in the introduction, the amendments submitted to the Venice Commission
are the result of a comprehensive agreement concluded on 27 March 2002 between
the different political parties of Bosnia and Herzegovina. Evidently this
agreement aims to establish as perfect as possible a parallel between the
solutions adopted at the level of the entities. Only the amendments to the
Constitution of the R.S. were submitted to the Commission, however.
First of all, the Venice Commission can
only welcome the fact that a political agreement was actually reached on this
extremely sensitive subject and that, as a result, the decisions of the
Constitutional Court can at last be implemented.
Furthermore, the Commission fully
understands the political reasons behind the adoption of symmetrical solutions
in the two entities, even if it did not necessarily recommend this approach on
a strictly legal level.
The purpose of this opinion is not to
verify the conformity of the amendments made to the Constitution of the R.S.
with the political agreement reached on 27 March 2002, which is a purely
internal question. Nor can it conceivably present a detailed panorama of the
numerous amendments made to the Constitution. It can only focus on the main
aim, which is to implement the decisions of the Constitutional Court,
especially by officially endorsing the principle of the collective equality of
the constituent peoples in the very institutions of the R.S.
7. To
achieve this the whole organisation of the Constitution of the R.S. has
undergone a complete overhaul. On certain points the amendments adopted go even
further than was strictly necessary to implement the decision of the
Constitutional Court on the “constituent peoples” issue.
In addition to the preamble, which has
been completely rewritten, Article 2 of the Constitution lays down two
essential principles. On the one hand it explicitly recognises that the R.S. is
one of the two equal entities of Bosnia and Herzegovina, something the Venice
Commission has long wished for. And on the other, it specifies that the Serbs,
Bosniacs and Croats, as constituent peoples, Others and citizens shall share in
the exercise of power equally and without discrimination.
This principle has numerous implications,
only the most important of which are referred to here.
Article 5 of the Constitution describing
the basic principles of the political system has acquired a new provision
concerning the protection of the vital interests of the constituent peoples.
The delicate question of official
languages is dealt with by the new Article 7. The official languages of the
R.S. are the language of the Serb people, the language of the Bosniac people
and the language of the Croat people. This roundabout wording is designed to
avoid any unnecessary disputes over the exact names of the languages. It is
also specified that both the Cyrillic and Latin alphabets are officially
accepted.
Paragraph 4 of Article 28 establishing
special financial links and co-operation between the State and the Orthodox
Church was deleted following the Constitutional Court decision. The maintenance
of paragraph 3 of the same article, stating that the Serbian Orthodox Church
shall be the church of the Serb people and other people of Orthodox religion,
is also open to debate, as it may raise problems in respect of religious
freedom. It was not submitted to the Constitutional Court, however.
Similarly, paragraph 16 of Article 68,
empowering the R.S. to regulate co-operation with Serb people living outside
the Republic, has been deleted.
Together these changes clearly reflect a
new attitude to the very foundations of the State, and its multi-ethnic
outlook.
8. Changes
at the institutional level are equally numerous and far-reaching.
For example, the last paragraph of Article
69 lists six important posts (Prime Minister, President of the National
Assembly, President of the Council of the Peoples, President of the Supreme
Court, President of the Constitutional Court, Principal State Prosecutor) no
more than two of which may be filled by representatives of any one of the constituent
peoples or of the “Others”. This provision seems to go beyond the mere
application of the Constitutional Court decision.
Similar provisions based on equal
representation of the groups are found in several places.
For example, two Vice-Presidents assist
the President of the Republic in the fulfilment of his functions (Art. 80).
The Prime Minister and Deputy Prime
Minister may not come from the same constituent people (Art. 92).
The ethnic composition of the government
is established by the Constitution itself, with a distinction between a
transitional phase and a final phase (following full implementation of Annex
VII of the Dayton agreement) (Art. 92).
Article 97 generally establishes the
principle that the constituent peoples and members of the group of “Others”
will be proportionally represented in public institutions of the R.S. (based,
until Annex 7 is fully implemented, on the 1991 population census figures). The
same principle applies mutatis mutandi
at municipal level, based on the latest census and the composition of the
municipal assembly (Art. 102), as well as to judges in district courts and
courts of first instance (Art. 127).
Finally, the Constitutional Court panel
responsible for protecting vital interests must comprise seven members, two
from each constituent people and one from the group of “Others” (Art. 116).
This selection from the most important
provisions shows the essential place left by the constitutional amendments for
mechanisms to protect and enhance equality between the groups, especially
between the constituent peoples.
9. The
most important provision of all, however, concerns the assemblies.
Until now the R.S. has been governed by a
single chamber, the Senate playing a merely consultative role.
The reform introduces a second chamber,
the House of Peoples. Organically the House of Peoples derives from the
National Assembly, itself elected by direct universal suffrage[3][3]. The members of the House of Peoples are
elected by the different “caucuses” in the National Assembly. Each “caucus”
nominates eight members in respect of the constituent peoples and four in
respect of the “Others”. The Constitution even stipulates that if the number of
members of a “caucus” in the House of Peoples exceeds the corresponding “caucus”
in the National Assembly, the latter must be enlarged to the municipal
councillors for the purposes of these elections (Art. 71).
In other words, in the House of Peoples
the principle of equality of the peoples prevails, the minorities (“Others”)
having the right to half the number of seats allocated to each constituent
people.
This very clear source of
over-representation of certain population groups can lead to the use of
techniques which are questionable in democratic terms. This is the case, as
mentioned earlier, when simple municipal councillors are called upon to take
part in the election of representatives to the House of Peoples.
10. The
House of Peoples does not have a say in all legislative matters, but only when
the vital interests of the constituent peoples are at stake (Art. 69, para. 2).
The vital interests of the constituent
peoples are defined in the last paragraph of Article 70 of the Constitution.
The definition is very broad. It comprises, for example, the right of the
constituent peoples to be adequately represented in the legislative, executive
and judicial bodies, the identity of the constituent peoples, education,
religion, language, promotion of culture, tradition and cultural heritage. To
this already long and broad list, the terms of which will no doubt give rise to
problems of interpretation, the new Article 70 of the Constitution adds any
other question considered as raising a problem of vital interest by one of the
“caucuses” of the constituent peoples in the House of Peoples.
This last, wide open possibility seems
excessive and could give rise to numerous blockages in the political
decision-making process. It would appear wiser to settle for a list of points,
themselves described in terms sufficiently broad to guarantee the protection of
the vital interests of the various peoples. It should also be noted that if the
vital interests included in the list can concern the minorities (the “Others”),
the political process of determining additional vital interests benefits only
the constituent peoples and not the “Others”.
11. The
procedure applicable when the vital interest clause is brought into play is too
complex and unwieldy to summarise here. Essentially, however, the House of
Peoples must decide by a majority of the members of the different “caucuses” of
the constituent peoples.
This “over-qualified” majority will
inevitably cause problems. The least numerous constituent peoples are already
over-represented in the House of Peoples, so requiring a majority in each of
the groups or “caucuses” representing the constituent peoples is difficult to
justify. In any event, as far as efficiency is concerned, this need for a
majority in each group almost certainly portends frequent blockages in the
decision-making process. The desire to protect the constituent peoples seems to
lead to a system of reciprocal paralysis the long-term effects of which may be
destructive.
A second criticism of this system is that
in the event of divergence between the two assemblies over whether a draft law
falls within the scope of vital interests or effectively violates vital
interests, recourse may be had to a special panel of the Constitutional Court
composed of seven members, as described at the end of section 8 above.
This panel reaches its decisions by a
qualified majority (which may be two thirds or three quarters, depending on the
circumstances). While there is nothing unusual about asking a Constitutional
Court to decide whether a proposed legislative measure falls within the scope
of a constitutional provision like the vital interest clause, asking it, or
rather the panel, to decide whether these same vital interests – of which there
is no definition – have been violated seems much more questionable. This role
so resembles a judgment of political expediency that the Court’s credibility
could easily be undermined. The fact that the Constitutional Court panel
reaches its decisions by a variable qualified majority only compounds the
danger.
IV. CONCLUSIONS
12. Rather
than constitutional amendments, what we have here is a veritable overhaul of
the Constitution of the R.S.
The Venice Commission is extremely pleased
that a political agreement was concluded concerning the implementation of a
decision of the Constitutional Court which itself profoundly affected state
structures in the two entities of Bosnia and Herzegovina.
In one way or another the Commission has
followed the whole process that is culminating today. It has done so in its
traditional capacity as an independent legal expert.
It is in that same capacity that it has
drawn up the present opinion.
On several occasions it has stressed the
very positive aspects of the constitutional amendments, which reflect a real
determination to implement the decision of the Constitutional Court as well as
great openness of mind.
There is no denying, however, that the
practical application of the principles underlying the decision of the Constitutional
Court was no easy matter and that several courses were open, each with its
advantages and its disadvantages.
The political agreement of 27 March 2002
was based on solutions that were as symmetrical as possible in the two entities
and geared to a philosophy of equality between the groups.
This course is not without its pitfalls,
some of which are highlighted in this opinion: effective decision making is
one, then there is the danger, in trying to protect the vital interests of the
constituent peoples, of endorsing a sort of mutually paralysing hegemony of
these different groups.
This course does seem to be defensible,
however, in the present context in