A man sitting on a bus in Sarajevo (© Maurizio Gjivovich)

Sarajevo (© Maurizio Gjivovich)

Bosnia and Herzegovina cannot wait any longer. It must embrace the constitution, which can no longer be just an "annex" to the Dayton Peace Accords. The opinion of the jurist Jens Woelk

22/03/2021 -  Lejla Gačanica

(Originally published by Women Citizens for Constitutional Reform, December 2020)

What was justifiable and justified immediately after the war, is not – at least not automatically and permanently, justified also 25 years later. So, from time to time, we need to make an assessment because things change. There was a war, so the communities involved needed guarantees in order to stop the war. But, 25 years after, it is clear that we cannot continue not to consider the individual rights of everybody in favour of guarantees for groups. But the status quo is comfortable for political elites inside the country, and even for EU and international community, at least to some extent. Change would create uncertainty. But if you start a constructive process, you can induce change with certainty, in the sense that you give this change a direction, an orientation. It does not needto be a chaotic process.

December 2020 was marked by numerous debates, conferences and reflections on the Dayton Peace Agreement and the Constitution of Bosnia and Herzegovina. The debate on the Constitution thus went beyond narrow ethno-nationalist frameworks, enabling a broader social discussion of constitutional reform and the future of the Constitution. We are pleased to be able to conclude this year with a conversation with professor Jens Woelk about BiH’s constitutional reform iswhat the social, formal and international aspects and conditions for change are, and why the constitutional status quo is not the solution.

Jens Woelk is a full professor of comparative constitutional law at the University of Trento (Italy), at the Faculty of Law and the interdisciplinary School of International Studies. After obtaining his PhD in legal sciences at the University of Regensburg (Germany), Woelk worked at Eurac Research in Bolzano/Bozen (1994-2000). His research interests include federalism/regionalism, comparative constitutional law and European Union law, minority rights and the constitutional transformation processes in Southeast Europe. In the Western Balkans, Woelk has participated in various projects and missions as an expert for the European Union and the Council of Europe, and as Senior International Legal Expert on EU integration issues at the High Judicial Council of Bosnia and Herzegovina (Sarajevo, 2018-2019).

On the occasion of 25 years of Dayton Peace Agreement, the question of the Constitution has recently occupied the political discourse. How did the fact that the BiH Constitution is part of the peace agreement affect its fate? In the 25 years of its existence, did the Constitution have the opportunity and possibility to be viewed as a separate document, and as the highest legal act of this state?

The Constitution was, and still is, above all seen as part of the peace agreement, and for me it is striking that there still is no translation into local languages, it still exists only in English, officially, which already tells you something. The fact that it is part of a ‘package’ in the Dayton Peace Agreement is on one hand a strength, particularly at the beginning, but, on the other hand, it has become an excuse for not touching it at all, because it seems that there is no way to be coordinated at least with international community. The OHR with the Bonn powers in BiH haven’t directly intervened the with state Constitution, only with the entity constitutions vis-a-vis their conformity with the Dayton constitution. But of course, using the power of imposing legislation, OHR has interfered with the constitutional order and the order of things established by Constitution. There is always this ambiguity. For me, one of the first reasons why change is needed, particular change which involves the domestic side  is the need for a kind of home-grown constitution, a ‘repatriation’, as known in the Canadian doctrine, meaning that the Constitution is yours. Fort the present and the future we need a BiH Constitution and not an internationally imposed or agreed document. 

BiH progress, including constitutional reform, seems to be stuck between international intervention and the functioning of the domestic political system in post-war Bosnia and Herzegovina. What is needed in BiH to taking over general “ownership” of Constitution and its transformation process?

The situation in BiH is certainly stuck. On one hand, I would say that in last decade it was even a taboo to talk about the Constitution, or its reform. I remember, when I came to Sarajevo in 2018 there was still this idea of better not touching this topic.  What is the point here? The point is that we are not sure whether there is sufficient agreement on a common state in Bosnia and Herzegovina. I think this is the deeper question behind the taboo of not touching the issue of constitutional reform: the fear that a debate about constitutional reform will create again splits and divisions which would question the very existence of the state as such. This is the point. And this actually shows us again how fragile this kind of cold war-situation 25 years after end of the war still is. On the other hand, there still is kind of comfortable compromise between the international community, and even the EU, on one side, and on the other side domestic political elites which have created a system often described stabilitocracy. Its elements are semi-authoritarian regime, patronage system, clientelism, dependency of assistance and foreign aid. However, you accept this as international community, as outside world, because it gives a minimum of stability and predictability. So, it is not nice to have, but it’s better to have this as something which is uncertain for the future development. Unfortunately, this passive attitude for geopolitical reasons, vis-à-vis Russia, China and Turkey, is very much in contrast with the official agenda of the EU in particular – of wanting to change the country into something more democratic. Here is a paradox between two objectives which are not so easy to reconcile: how to fit into the geopolitical picture the transformation towards democratic ownership of country. And this is the actual challenge, because it should be the aim of EU. It is simply not possible, in formal terms, for BiH to become member of the EU with Constitution as it stands now, and in more substantial terms it is not possible for BiH to become member of the EU with such an ethno-nationalistic and semi-authoritarian political system. You know about the controversy with Hungary and Poland on the Rule of Law, which is very bad, as it touches the very foundations of European integration. We have to cope with them as member states, which is very serious situation, raising a lot of important questions, also for BiH and enlargement process. But, of course it is different for a candidate state where the EU still has to decide whether they will let it in or not.

And here comes the ownership issue again, because I think this famous transition, which now seems quasi permanent, due to the compromise I talked about before. This transition needs to be ended and the only way to do so is that the population in BiH (and I say population to include everybody) actually demonstrates its will to be a state. I think this is the point. And then we need to discuss which kind of state – and this can only be multinational state, i.e. this can only be a state where to a certain extent group dimension is respected, recognised and also guaranteed to some extent. But, there has to be a clear demonstration that there is no discussion of separation or secession. It is different, but in a way this was also precondition for Germany‘s reunification. Germany had to defintively renounce all territory that it had lost after the Second World War. There were associations of former refugees active and strongly influential in German political life which in the first decades after the war opposed any such idea. In the case of South Tyrol, close to where I’m based in Northern Italy, the compromise was on much better autonomy and very different regulations compared to the rest of Italy in exchange for German speakers to renounce on their objective of becoming independent or joining Austria. Full stop. Borders have to be respected. And this is actually what’s needed also in the case of BiH. Here, of course, it is also necessary to include neighbouring countries – Serbia and Croatia – in order to stop destructive interference from the outside. Currently, there are clearly negative interferences for cheap political gains and this has to stop. I would see a priority on the Croatian side, not because Croatia should be treated differently from Serbia, only in the sense that it has an even greater responsibility as EU member state. For me, this is absolutely clear. Serbia will in case be punished by not making fast progress towards EU if it continues to behave like negatively. Croatia is different because it is already in the EU. It is bit like Poland and Hungary in different terms, as I said before. There should be clarity: it cannot be allowed that a member state of EU questions borders or interferes deeply into internal affairs of another (non-EU) state. This is very similar to what Croatia itself didn’t like regarding Slovenia and the dispute on maritime borders, time ago. As an EU state it should be responsible in attitude and behaviour vis-a-vis a potential candidate (and hopefully soon future candidate). This brings me to the next point: it is not that I’m saying that any kind of interference or interest should be prohibited. It is useful, and there are many situations (like Austria – Italy, Northern Ireland – United Kingdom and Ireland) where another state interferes – but this has to be done constructively, with an aim of improving situation on both sides of border and in particular through cross-border cooperation and other, bilaterally agreed instruments. This will be much improved when BiH becomes member of EU, but there is a great potential here that should be used constructively, also in geopolitical terms. 

Still, it often seems that the lack of political will and the lack of a reform process contribute to creating a discourse about the hope or need for international community intervening again in amending the BiH Constitution. How harmful and dangerous is this?

It is dangerous because it would definitely keep BiH at distance from the EU. With such thinking it is not possible to enter EU. This is the danger. The second danger is praising the status quo too much. The status quo probably for many right now seems the best option, but it is a short –term option as things change, in particular the world changes outside BiH. Look, for instance, which people govern in Belgrade and Zagreb, and this has changed over the last 25 years and we see the consequences and the differences of these changes – and these are only small changes compared to many wider changes in the world. It is no guarantee that these outside changes will not have important consequences for the inner situation in BiH. So the status quo is anyway an illusion, because if you cling to the status quo, there is no capacity to adapt to wider situations. This is an important capacity –adapting as a state to an international environment; if you don’t have it, you cannot actively guarantee that the situation you want to preserve will remain.

Almost all discussions on changes to the BiH Constitution are conducted within ethnic categories. Can we, as a society and a state, go beyond these narrow frameworks? Is it possible to reconcile ‘citizens’ principles as equality among all men and women in BiH and multiethnical principles with ‘constituent’ principles?

I’m absolutely positive about this. I think it is possible to reconcile these two dimensions. It is possible if you don’t see them as necessarily antagonistic. There is in the first place an international legal regime which protects individual rights. But, there are many situations where this regime is “corrected” for the sake of respecting and implementing not only other constitutional principles but also other public interests including the respect of group rights or group interests. My answer is in one word: dynamics. Reconciliation of contrasting values is only possible if you see that even the Constitution is something which is dynamic. It is not static, written in stone. It is important that the Constitution, like the Canadian doctrine says, is a living tree. So, you have some basic principles, which are the tree’s trunk, and a lot of details which implement these principles, still on constitutional level, which might be compared tot he limbs and leaves. The latter change. Some even fall off or are cut off, and some new will grow, and this is life and important for any social organism. It is artificial to freeze these things. So, you see to see the two dimensions -individual rights and group interests and rights –  from a dynamic perspective. I think this is what in 2005 the Venice Commission said in its opinion on constitutional situation in BiH, then in the 2009 Sejdić-Finci-case the European Court of Human Rights took it up, and confirmed it in the following judgments, until now with the Pudarić case in December 2020. I think this is an important message, and we know it from constitutional law: it is linked to the principle of proportionality. What was justifiable and justified immediately after the war, is not – at least not automatically and permanently – justified also 25 years later. So, from time to time, we have to assess the situation anew, because things change. There was a war between three communities (I know that this is over-simplified), so we had to give these communities guarantees in order to stop the war. The rights of individual citizens not belonging to these communities simply was not an issue at the time, because constitutional law is about containing power.  But, 25 years after, in a much more relaxed atmosphere (although I usually refer to it as a cold war), it is clear that we cannot continue like this in favour of groups, i.e. not considering the individual rights of everybody. From the rule-exception-relationship established 25 years ago (in favour of groups) we have to move to new balances, without forgetting about the importance oft he group dimension. Let me use a very concrete example, the fact that there can be absolute vetoes, I would contest. I would say that if there need to be vetoes, then we also need to have a conflict resolution mechanism which can guarantee the interest of all involved but can also overcome this veto. So, from an absolute veto I would go to a suspensory veto. This is an example where I would say nowadays that group rights don’t have to be guaranteed in these absolute terms.

The theoretical transformative potential of a constitution usually are overshadowed here by discourses on almost a sacred ‘ban’ on change/reform. You have experience working in BiH, so our political and legal current events are well known to you. In your opinion, why is constitutional reform so difficult here – not to say impossible? How to overcome the status quo?

It is not difficult to change Constitution in BiH. On paper it is very easy. A two-thirds majority in the Parliamentary Assembly is sufficient, comparing this to many other countries, it is easy. The question of course remains, why it didn’t happened so far. I grew up in divided Germany. And Germany was already divided when I was born, and I thought growing up that this would remain forever, basically. So, we take many things too much for granted, which characterize our everyday lives so much, in many respects and details. But they can actual change. And I do remember my own emotion on 9th November 1989, when the Berlin Wall opened and people went through. Which was absolutely impossible two days before, they would have risked to be shot at. Now, they were going through, like the Wall didn’t exist, even though it was still there. So for me this is where I understood that these things are often self-fulfilling prophecies, very often narratives which are created and we accept because we need orientation, we need certainty, and so it is better not question, not to ask. And here we are back to what I said before – the status quo is comfortable, even for EU and international community, at least to some extent. Change would create uncertainty. But if you start a constructive process, you can induce change with certainty, in the sense that you give this change a direction, an orientation. It does not need to be a chaotic process., doesn’t need to be a revolution. So: the Constitution can be changed, there can also be process created, which will give some guarantees.

At the Academic conference “25 years after: Which Future for the Dayton-Generation?” held recently in December 2020, one conclusion was the need for mobilisation of citizens to start or achieve constitutional reform, or at least agreement over constitutional reform. Another, also very interesting point was creating a momentum for change. How to create this momentum in BiH, is there a real chance for this?

I don’t think citizens like to engage in constitutional reform debates. They even do less so and less like it the more the outcome is uncertain. First, to create such momentum there have to be a lot of people who say that is possible and it is desirable. You have to create an environment where this is something which is seen as imminent, that this will happen. And then, you can mobilize people, and this is also the task of, I would say, the international community. The fact that Joe Biden is the new American president will hopefully contribute to cooperation between the EU and the US rather than them being antagonists. And next year there will be no elections in BiH. So, there will be a window of opportunity, which does not mean we need to have a new Constitution by end of 2021, but it is at least  a situation where such momentum can build up. In order to break the monopoly of the nationalist elites, one could experiment with citizens assemblies like in Ireland where people discuss not the whole Constitution but single, previously identified important elements. And when you think of Ireland, nobody thought that it would change the abortion ban in the Constitution, but this was actually done after such an exercise. So, I think it is possible to discuss a number of constitutional issues in such assemblies in order to obtain indications from the citizens, which afterwards will be discussed by experts, and of course also in the Parliamentary Assembly.  In the BiH case, it is probably easier to proceed with constitutional change through amendments rather than by a constituent assembly which would re-write the Constitution completely. I would start from the April package (2006), from its principles, because it was already widely agreed upon as a common nominator. Adding the case law of the European Court of Human Rights and the Constitutional Court.

Also, gender equality requirements for integrating into Constitution are present in BiH. During political transitions it is important to put emphasis on women’s rights and gender equality in order to take the opportunity to correct the historical exclusion of women from the political sphere. Is there a ‘right way’ to constitutionalise gender equality?

My answer is: more women. Simple, more women are needed in the process. And also more young people, although according to results from a recent survey young people are not necessarily more democratic in their preferences. But still they have interest in the future. It is very important that these two groups are represented adequately and maybe even over-represented, i.e. that there are more women and more young people in these citizens‘ assemblies. This can be guaranteed by algorithms, which randomly select citizens, but also secure that women and youth are equally represented or even over-represented. Also, as I said before, I have the impression that compromise does not count very much in BiH, and in the Balkans – culturally. But compromise is the very basis of constitutional law in a pluralistic democracy. It is never, or hardly ever, a radical choice, but rather often reconciliation, looking for a balance between different values and principles in order to make most out of all of them. This is what compromise is about.
Regarding a constitutional provision on the representation of women, there are a lot of examples. This is very much culture-dependent, but also, if too much dependency on culture is an obstacle to female participation, this may actually be a reason why you introduce such a provision in the Constitution. Even in Italy, where similar cultural issues exist, there is a clause on the representation of women in elected positions and institutions. My only caution would be not to overload the quota representation. But it may also be useful interesting counterweight to the ethnic representation. The problem is often when positions are filled, and this is my concrete experience in the Council of the Judiciary (HJPC), that the combination of ethnic and gender criteria very strongly limiting the choices of the candidate, often to the detriment of merits.

How to create a momentum for BiH to, among other requirements, include women, i.e. to enshrine women’s rights, gender equality, and the principle of non-discrimination based on gender in Constitution therefore recognizing women’s equal status and enable legislative changes addressing existing discrimination? How important is the hierarchy of legal acts here – ie, that these principles are contained in the Constitution and all lower legal acts are harmonized with them?

It is very common in federal system that there are ‘homogeneity clauses’, not in the sense of ethnic homogeneity of course, but in the sense of homogeneity of fundamental principles. There cannot be contradictions in terms of value decisions between the federal level and the subnational level. This may include special treatment of women and equality issues and even affirmative actions. Homogeneity clauses guarantee a common minimum standard, but if you want you can go further, but this is even true in EU law. If I may express personal opinion, sometimes I’m a bit surprised by the legal positivism which is still very frequent in former Yugoslavia countries. I think it comes from socialist mentality and formalism, positivism, not being familiar or not being willing to interpret law in a dynamic or objective-oriented way. But the teleological method of interpretation, towards reaching an objective, is typical, by the way, for EU law.

What is your opinion on direct democracy in countries and societies like Bosnia and Herzegovina? Is direct democracy a potential option for us?

I think it can be very useful, as we can see in the Swiss case, but also in some other cases. It is a certain risk and delicate in divided societies, because it is based on the majority principle, a plebiscite. Usually this is not the right way of deciding in divided societies, as you need slower mechanisms, more inclusive and not pitting one group against the other. In particular where you have structural minorities which can never become a political majority. I would say direct democracy is rather rare in these situations but not impossible. 

EU integration is an important momentum for BiH – along the way, harmonization of legislation is expected, adoption of relevant standards, and the determination of the BiH authorities sometimes seems insufficiently convincing. We can read that from the Opinion of the European Commission, as well as from the previous progress reports. Where is, in that process, the change of (by the decisions of the ECtHR qualified – discriminatory) Constitution of BiH? What, in your opinion, should be done?

Where it is? Now it is in the European Commission’s Opinion on BiH application for membership. Constitutional change is very prominent among the 14 key priorities. And I think there are two dimensions: one is about values and the other one regards functionality. Regarding values, certainly Sejdić-Finci and the other judgments of ECtHR. So, some corrections are necessary here in favour of individual rights.  Which, again, does not mean total change against any recognition of the collective dimension but correction. I think this is clearly established now. And the other issue is functionality: this regards the territorial and institutional fragmentation but particular also legal certainty – clarification for example on the transfer agreements from Entity-level to the State, which in fact have semi-constitutional status, from my point of view, that these are not agreements which can be undone easily (or unilaterally). Still, for judicial institutions on state level, which interfere with fundamental rights of people, it is important to receive constitutional status. I would add a third element, which is an integration clause. This has already been contained in the April package. It is very important for BiH to speak with one voice in the decision-making process at EU level in future and also guarantees the EU that domestic implementation is done and that responsibility for non-implementation or failures in implementation is shared making the entities understand their responsibility in this process.

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