The Faculty of Law of the University of Vienna, togheter with the Faculties of Political Sciences, of Law, and of Islamic Sciences of the University in Sarajevo, launched in 2009 a series of international conferences on constitutional reform in Bosnia and Herzegovina. The proposals emerged from the discussion
These proposals reflect the results of the discussions between experts and participants from Vienna, Sarajevo, East Sarajevo, Banja Luka, Mostar, Liege, Salzburg and Trento at the conferences on constitutional reform in Bosnia and Herzegovina held in Sarajevo on 10 December 2009 and in Vienna on 16 April 2010. Both conferences have been organized in cooperation between the Faculty of Political Science of the University of Sarajevo and the Faculty of Law of the University of Vienna.
The judgment of the European Court of Human Rights delivered on 22 December 2009 in the case of Sejdic & Finci vs. Bosnia and Herzegovina has confirmed the limits and deficiencies of the Dayton Constitution of Bosnia and Herzegovina with regard to the violation of individual rights and discrimination in the current institutional system. While creating an obligation for implementation related to these important issues, it also demonstrates the necessity for further change of the constitutional system.
Procedural aspects of implementation
As a starting point, a minimum implementation of the judgment would at least require a change of the current electoral system in order to secure the conformity of the upcoming elections with European human rights standards which form an integral part of Bosnian constitutional law (art. II.2 Const. BiH).
However, constitutional reform is necessary as it provides more legal certainty and should signify the start of an internally driven process of substantial constitutional reform beyond the mere implementation of the judgment. This could be reflected also by the adoption of a European integration clause which would confirm the readiness and willingness of Bosnia’s institutional actors and citizens to give the accession process a secure constitutional basis.
Substance of reform
There is a wide range of options for implementing the judgment. The detailed opinions of the Venice Commission provide guidance in the choice of a sustainable solution. However, all possible options will have to be based on a differentiation of territorial and ethnic representation, i.e. a separation of interests expressed through territorial units and those attached to the guarantee of group rights and collective identities. In addition, the current dominance of ethnic and collective representation has to be balanced with the guarantee of individual rights of citizens, as the judgment underlines with regard to “Others”, but as it is also necessary for members of constituent peoples which are discriminated on grounds of residence.
Such a reform should be accompanied by a clause which would declare European integration a supreme State objective accepted by all. It should also contain technical issues, such as adaptation of institutions and procedures for guaranteeing participation in the decision-making process as well as timely and thorough implementation of EU law through the coordination and cooperation of all levels of government.
Actors in the reform process
Beyond the immediate implementation of the judgment, constitutional reform is an opportunity for change and for empowerment, but it is a shared responsibility of Bosnians and the International Community, in particular of the EU and the Council of Europe.
Constitutional reform, as an open process for change, has to include civil society in order to guarantee information and participation of citizens, thus providing the basis for sustainability.
The European Union and the Council of Europe (and other actors of the International Community) must support this process by providing clear and precise guidelines for reform, necessarily with one voice. Although a variety of options should be indicated, the EU must be precise and consistent regarding the necessity of constitutional reform as well as regarding the essential cornerstones of any such reform. This is the fundamental basis for substantial progress towards integration of Bosnia within the EU; alongside with this process of Europeanization, civic empowerment will be reinforced in the perspective of achieving the status of European citizenship for citizens of Bosnia and Herzegovina.
Vienna, 17 April 2010
Doc. dr. Dino Abazović, Faculty of Political Sciences in Sarajevo
Mag. Đorđe Ĉekrlija, University of Banja Luka
Dr. Vedran Džihić, Faculty of Political Sciences, University of Vienna
Prof. Dr. Stefan Hammer, Faculty of Law, University of Vienna
Prof. emeritus Omer Ibrahimagic, University of Sarajevo
Prof. dr. Niko Ikić, Catholic Theological Faculty in Sarajevo
Mag. Birgit Kunrath, E.MA, University of Salzburg
Prof. dr. Senadin Lavić, Faculty of Political Sciences, president of Bosniak Cultural Society Preporod
Doc. dr. Goran Marković, Law Faculty of East Sarajevo (Pale), deputy president of the Serbian Cultura Society Prosvjeta
Prof. dr. Mirko Pejanović, Dean of the Faculty of Political Sciences of the University in Sarajevo
Prof. emeritus Ćazim Sadiković, University of Sarajevo, BiH member of the Venice Commission
Prof. Jean-Claude Scholsem, University of Liège, substitute member of the Venice Commission
Doz. Dr. Jens Woelk, University of Trento