Summary

Introduction

The European Commission for Democracy through Law, also known as the Venice Commission, is an internationally recognized, independent legal think tank and advisory body on constitutional matters created by the Council of Europe. The commission was established in 1990 as a tool for emergency constitutional engineering and has come to play a unique role in disseminating the European constitutional heritage, managing crises, and preventing conflict through constitution building.

In March 2005 the Venice Commission criticized the constitutional situation in BiH, noting, "There is a powerful wish [among the citizens of Bosnia] for the country to participate in European integration with the final aim of becoming a member of the EU."¹ However, the commission and the European Parliament believed that "a stabilization and association agreement, as the first step in this direction, will require institutions at the state level far more effective than those [that] exist [today]." Bosnia's future lies in Europe, but its constitution is anchored in the postwar Dayton peace agreement. Safeguards to ensure ethnic parity were necessary to secure the peace ten years ago, but in the words of the commission, "it is unthinkable that [Bosnia] can make real progress with the present constitutional arrangements."²

The Venice Commission report was issued at the request of the Bosnian government to facilitate future constitutional deliberations in Bosnia. However, the impetus for change accelerated with the initiation of the EU's Stability and Association Agreement (SAA) and the pressing requirement for Bosnia's government to face hard fiscal realities as it responded to the demands of EU accession. Without constitutional change and reordering of governmental authorities, the country cannot realistically address the imperatives of the SAA; nor can it hope to finance the required state institutions. How has Bosnian constitutional reform proceeded to date, and what additional steps will be needed?

Conclusion

The package of amendments represented consensus of five of the seven parties that began the process. And for the first time, support for the development of the state was based not on entity or ethnic issues but on party lines. The amendments dealt with the Venice Commission's concerns with regard to the presidency, the House of Peoples, minority representation in parliament, and the role of government. They did not eliminate all the problematic issues, such as the tri-presidency, bicameral parliament, entity voting in parliament, or the existence of the entities themselves. However, the agreement represented a significant step forward for the Bosnian political leaders. In a groundbreaking step, Bosnian politicians found both a process and the political will to reach consensus on the state constitution.

Unfortunately, after leading the working group deliberations in an extremely constructive manner and indicating that the parties had reached consensus on the major issues and the process, the SBiH broke ranks with the other parties and withdrew from the process. The party's leadership decided it would fare better in the upcoming elections by attacking both the process and the results as a plot imposed by foreigners to consolidate the powers of the RS by cementing them in the constitution. Despite his earlier support for the process and leadership of the working group, the SBiH representative denounced the proposed amendments in parliament, declaring, "I was against the proposed amendments, and this is how I am going to treat them at the committee's session." ¹⁰

As a result of internal party disputes, former members of the HDZ in parliament joined with the SBiH in voting against the package. The result was that on April 26, 2006, in a 26-16 vote, parliament failed to ratify the amendments by the required two-thirds majority. After some deliberation, those supporting the package decided to wait until after the October election to resubmit the package for consideration. They speculated that the elections would change the political alignment in parliament enough to ensure passage.

The Council of Europe, EC, EU, and the U.S. government all expressed disappointment with this outcome. There is no doubt that if the next government is formed on the basis of the existing constitution, four years will pass before needed reforms can be undertaken. This failure will ensure a significant delay in the EU membership process and leave Bosnia-Herzegovina with a weak and dysfunctional government just as the OHR closes.

On the other hand, if a new parliamentary coalition passes the amendments in October or November 2006, the new government can begin work with a newly empowered executive and a streamlined decision-making process. This new framework will create the possibility of a more functional government and give the EU confidence that it is dealing with a state that can uphold its commitment to the EU. The country then can turn to other needed reforms: strengthening and granting greater independence to local government, redefining the roles of all levels of government, improving government services, and reducing the cost of government to the average citizen.

The first phase of negotiations was extremely difficult, and the second phase will be no less difficult. It will require vision, political will, and a commitment to making government work for the citizens, not just for the country's politicians. Change in government should be motivated not only by the demands EU accession places on the country, but should be anchored in commitment to the citizens, making everyone feel that the citizenry will play a growing role in the country's future.

Recommendations

• Once a new parliament is at work, the political parties in Bosnia-Herzegovina should pass the constitutional amendments the parties agreed to before the election. At the same time they should seek to develop support for creating a concept of government acceptable to all parties. They also should raise awareness of the structural changes required if Bosnia is to meet the EU requirements. Such changes must promote the interests of the citizens in more service-oriented governmental structures.
• The parliament of Bosnia-Herzegovina should create a commission on governance to discuss necessary changes to facilitate Bosnia's candidacy in the EU. The commission should have a clear mandate to review the operation of government at all levels (municipal, cantonal, entity, and state) and recommend an operational plan for making agreed changes. This commission should include all levels of government, representatives of civil society, and experts on public administration, both domestic and foreign. It should develop an outreach strategy to engage the people and incorporate their views into its work.
• The U.S. government should take the lead in meeting with parliamentary caucuses, political parties, and opinion leaders in Bosnia-Herzegovina to promote clear understanding of the need for such a commission and for structural changes in government at all levels. The United States also should assist in building a coalition of friends (including the EU, Canada, Switzerland, Norway, and Japan) to help sustain this process.
• The EC should initiate direct conversations with the citizens of Bosnia regarding the SAA and EU candidacy requirements, to increase understanding of the changes required in every aspect of national life. Citizens also need to understand what actions will be required of their government if it is to meet the EU requirements, as well as the connections between levels of taxation, economic growth, and the size of government. The country is still undecided about how the social compact between government and the citizen is to be implemented; now is the time to clarify this relationship in the EU context.
• Besides the United States, EC, and key governments, the IMF, the World Bank, and the Organization for Security and Cooperation in Europe could be crucial. These groups must come to a consensus about how best to inform the process and provide critical information to the commission, to supplement the information it has or will gather during its mandate. To make such a commission work, the United States, the EU, Canada, and others must offer experts in public administration to the commission. The IMF and the World Bank have a body of research regarding the functioning of governments in Bosnia; they can assist the commission in evaluating existing structures and providing options for those structures. It also will be vital for both the World Bank and the IMF to assist the commission in costing options—both savings and expenses of establishing new structures and carrying out a transition.

Notes

1. See www.venice.coe.int/site/main/presentation_E.asp.

2. European Commission for Democracy through Law (Venice Commission). Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative (Venice: March 11, 2005), paragraphs 20, 26.

10. H. Orahovac, "Five of Nine Committee Members Against Amendments?" Dnevni Avaz, April 12, 2006 (in Bosnian).

About the Report

In 2004 the European Commission for Democracy through Law issued a report on constitutionalism in Bosnia-Herzegovina, noting several changes Bosnia would have to make to begin the EU accession process. With the help of the United States Institute of Peace, the Public International Law and Policy Group, and the Dayton Peace Accords Project, the leaders of Bosnia's major political parties began a consensus-driven process to produce constitutional amendments to address these issues. This was the first time since Dayton that Bosnia's political leaders sat down to discuss constitutional reform on their own initiative.

Ambassador Donald Hays is the chief operating officer of Business Executives for National Security. At the Center for Post-Conflict Peace and Stability Operations of the United States Institute of Peace, he worked on post-conflict recovery in the Balkans and served as the lead adviser and mediator of the multiparty negotiations on constitutional reform in Bosnia-Herzegovina. He was the principal deputy high representative in Bosnia-Herzegovina from 2001 to 2005.

Jason Crosby has worked on post-conflict recovery and municipal governance in Bosnia-Herzegovina and economic reconstruction in Iraq at the Institute's Center for Post-Conflict Peace and Stability Operations.