Constitutional Reform in Bosnia and Herzegovina.

A Unicameral Parliamentary Political System as a Solution for the Implementation of the Ruling in the Case “Sejdić and Finci vs. Bosnia and Herzegovina”?

Saša GAVRIĆ

Centre for Political Studies, Sarajevo

Abstract: The ruling of the European Court of Human Rights in Strasbourg in December 2009 in the Sejdic and Finci vs. Bosnia and Herzegovina (BiH) case has set a clear task for BiH institutions and political elites: the political system of BiH must be reorganised in such a way so that all citizens be able to run and be elected for the BiH Presidency and House of Peoples of the BiH Parliamentary Assembly, regardless of their ethnic origin. Since 2010 till today we have heard a number of discussions on the implementation of the decision, but none of them found consensus among BiH political elites. Based on the opinions of the Venice Commission, the Swiss political system and the analysis of the actual BiH political structure, a proposal for the implementation of the ruling Sejdic and Finci will be presented in this text. It foresees the abolishment of the Presidency and House of Peoples of the Parliamentary Assembly by creating a unicameral parliamentary political system in BiH, with a more functional decision making process. The executive power will not be anymore divided between the collective head of the state (Presidency) and the state government (Council of Ministers), but would be focused on only one body: the Council of Ministers.

Keywords: Sejdic and Finci vs. Bosnia and Herzegovina (BiH) case, BiH Presidency, House of Peoples of the BiH Parliamentary Assembly, constitutional reform.

1. INTRODUCTION

By December 22, 2009 it became clear: Bosnia and Herzegovina (BiH) needs a constitutional reform. The European Court of Human Rights in Strasbourg ruled in favour of the plaintiffs in the case Finci-Sejdić vs. Bosnia and Herzegovina. “Exclusion of minorities from active participation in the elections has no objective and logical justification and thus stands in contradiction with the European Convention on Human Rights, which prohibits discrimination”, the Court stated, and the local media reported. BiH had been taken to the Court of Human Rights by Jakob Finci, president of the Jewish community of BiH and BiH diplomat, and Dervo Sejdić, president of the Roma organization. Finci and Sejdić had pleaded that, as members of minority communities in BiH, they were subject to discrimination. The reason is that, according to the Dayton Constitution, only members of the constituent peoples – Bosniacs, Serbs and Croats – may be elected to the State Presidency and the upper chamber – the House of Peoples – of the BiH parliament. Minorities are unable to participate in these institutions, since after the war BiH was built on clear ethnic and entity grounds. The rule should have strengthened the peace between the three majority ethnic groups. There was no room left for minorities and those who are not ethnically determined (e.g. the so-called “Bosnians”). Nevertheless, these checks-and-balances actually present a barrier to the further development of the country seeking EU membership, especially concerning the building of a functional state.

Based on the aforementioned, it can be concluded that Bosnia and Herzegovina needs a constitutional reform for two reasons:

a. In order to harmonise the State Constitution, as well as entities’ and cantons’ Constitutions (cantons within the Federation of BiH – FBiH) with the applicable international, but also regional documents on human and civil rights (most importantly the European Convention on Human Rights and its Protocols), thus abolishing various discriminatory elements related to the political rights of certain groups of the population.

b. In order to build a functional state with government structures and competencies that allow for a speeding up of the decision-making process and its implementation, especially in terms of implementation of the EU’s Acquis communautaire in the process of European integration[1] .

Since 2010 till today we have heard a number of discussions on the implementation of the ruling. Political elites have not found yet a satisfactory solution for all the citizens. The negotiations were conducted in closed circles, away from the official parliamentary structures. Civil society organisations have presented different models for the implementation of the ruling.

2. DAYTON CONSTITUTION

Before we discuss the issue of the constitutional reform, we will briefly recall the basic characteristics of the Dayton Constitution, state institutions envisaged by the Constitution, and the amendment procedure stipulated thereby.

The main characteristic of modern constitutional development in BiH (in relation to the Constitution of the Socialist Republic of Bosnia and Herzegovina) and what distinguishes it from continental and Bosnian-Herzegovinian constitutional tradition is that the BiH Constitution was de facto adopted during peace negotiations and thus formally represents a part of an international treaty[2] . The Constitution of Bosnia and Herzegovina was agreed upon as a supplement to the international treaty: Annex 4 of the Dayton Peace Agreement. Its constitutional character has been acknowledged by the authority of the Dayton Peace Agreement, the Bosnian-Herzegovinian constitutional doctrine and decisions of the Constitutional Court of BiH. However, it cannot be seriously claimed that Annex 4 is the constitutional and legal text of the BiH demos (state nation[3]). By analysing the evolution of the BiH socialist constitutional system to the present Dayton Constitution, it is possible to identify the following changes: a) Establishment of ethnicity as the holder of sovereignty and basis for the entire system to the detriment of an abstract citizen[4]; b) Establishment of consensus as a decision-making practice (firstly as a mere practice established by political parties and later on by introducing this aspect into the constitutional text).

These changes are the result of changes on a social basis and rest primarily on the collective and ethnic identification of peoples in Bosnia and Herzegovina. In other words, the Preamble^[5] of the Constitution of BiH states that constituent peoples are the adopters of the Constitution of BiH, i.e. “Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina…”.^[6] The principle of an abstract citizen is not envisaged in the Dayton constitutional provisions. The Constitution of BiH does not address the “Others”, but interpretation leads to the conclusion that these are national minorities and persons without ethnic identification.

3. BIH STATE INSTITUTIONS ACCORDING TO THE CONSTITUTION

According to the constitution, BiH is divided into two federal units: the Federation of Bosnia and Herzegovina (FBiH) and the Republika Srpska (RS). State institutions are mostly regulated by the Constitution of BiH. State authority is divided between executive, legislative and judicial authorities. The executive and legislative bodies are expressly regulated by the Constitution, but judicial institutions are not.

The legislative authority at the BiH state level is exerted by the bicameral Parliamentary Assembly, which consists of the House of Representatives (Article IV, Item 2 of the Constitution) and the House of Peoples (Article IV, Item 1 of the Constitution). The House of Representatives has 42 members with two-thirds of the representatives elected from the Federation of BiH, and one-third from the territory of the RS. The representatives are elected directly from their entity in accordance with the Election Law of BiH. The House of Peoples consists of 15 delegates out of which two-thirds are from the FBiH (including five Bosniacs and five Croats), and one-third from the RS (five Serbs). FBiH representatives in the House of Peoples are elected by Croat and Bosniac delegates in the FBiH House of Peoples. Representatives from the RS are elected by the RS National Assembly. All legislative decisions must be approved by both Houses; where efforts will be made to include at least one third of the representatives from each entity. Or, otherwise, in case this is not possible, the aim is not to have two thirds of the representatives/delegates from each entity voting against the decision, only after the commission’s attempts to solve the dead-lock failed (Article IV, item 3 of the Constitution). This practice is known in politics and legal theory as Entity Voting.^[7]

The executive authority is divided between the BiH Presidency (Article V of the Constitution) and the Council of Ministers (Article V, Item 4 of the Constitution). The BiH Presidency is composed of three members, one Bosniac and one Croat who are directly elected from the territory of the FBiH, and one Serb who is elected from the territory of the RS. Similarly to the situation of the House of Peoples, the election of the Presidency members exhibits clear signs of discrimination.

The Council of Ministers is insufficiently regulated by the constitutional text. BiH Presidency appoints the Chairman of the Council of Ministers, who is responsible for appointing the other members – the Ministers. Ethnic structures have to be taken into account during the appointments. The House of Representatives passes a vote of no confidence to the Council of Ministers, in which case the latter must resign.

The Constitutional Court of Bosnia and Herzegovina (Article V, Item 3 of the Constitution) is a specific body that deals with the implementation of the principles of constitutionality and legality, solving disputes between entities, disputes between BiH and the entities or other BiH institutions. It can also be appealed to when constitutional provisions become a subject of dispute before any of the BiH courts. It is interesting that the constitutional text lacks provisions on judicial authority at a state level.

4. THE EUROPEAN COURT OF HUMAN RIGHTS RULING IN THE CASE SEJDIC AND FINCI VS. BOSNIA AND HERZEGOVINA

The applicants, Dervo Sejdić and Jakob Finci, are citizens of Bosnia and Herzegovina. They were born in 1956 and 1943 respectively and live in Sarajevo. The former is of Roma origin and the latter is a Jew. They are both prominent public figures. As mentioned above, the Bosnian Constitution distinguishes between two categories of citizens: the so-called “constituent peoples” (Bosniaks, Croats and Serbs) and the “Others” (Jews, Roma and other national minorities together with those who do not declare affiliation with any ethnic group). Comparing to the entity institutions after the constitutional reform of 2001, the House of Peoples of the Parliamentary Assembly (the second chamber) and the Presidency are composed only of persons belonging to the three constituent peoples. Mr Jakob Finci consulted the Central Election Commission about his intentions to stand for election to the Presidency and the House of Peoples of the Parliamentary Assembly. On 3 January 2007 he received a written confirmation from the Central Election Commission that he was ineligible to stand for such elections because of his Jewish origin.

The applications were lodged with the European Court of Human Rights on 3 July and 18 August 2006 respectively. On 10 February 2009 the Chamber before which the case was pending decided to relinquish jurisdiction in favour of the Grand Chamber pursuant to Article 30 of the Convention.

The applicants argued at the European Human Rights Court that, despite possessing an experience comparable to that of the highest elected officials, they were prevented by the Constitution of Bosnia and Herzegovina, and the corresponding provisions of the Election Act 2001, from being candidates for the Presidency and the House of Peoples of the Parliamentary Assembly solely on the ground of their ethnic origins. Firstly, the Court considered that, given the applicants’ active participation in public life, it was entirely coherent that they had considered running for the House of Peoples or the Presidency. The applicants could therefore claim to be victims of the alleged discrimination. The fact that the present case raised the question of the compatibility of the national Constitution with the Convention was irrelevant in this regard.

The Court also noted that the Constitution of Bosnia and Herzegovina was an annex to the Dayton Peace Agreement. The power to amend it was, however, vested in the Parliamentary Assembly of Bosnia and Herzegovina, which was clearly a domestic body. In addition, the powers of the international administrator for Bosnia and Herzegovina (the High Representative) did not extend to the State Constitution. Accordingly, the contested provisions came under the responsibility of the respondent State. The Court noted that although the House of Peoples of the Parliamentary Assembly was composed of indirectly elected members, it enjoyed very wide legislative powers. Article 14 in conjunction with Article 3 of Protocol No. 1 was therefore applicable.

In consequence, the Court concluded by 14 votes to 3 that the applicants’ continued ineligibility to stand for election to the House of Peoples of Bosnia and Herzegovina lacked an objective and reasonable justification and had therefore breached Article 14 in conjunction with Article 3 of Protocol No. 1. With regard to the eligibility to stand for the Presidency of Bosnia and Herzegovina, the applicants relied only on Article 1 of Protocol No. 12. The Court noted that whereas Article 14 of the Convention prohibited discrimination in the enjoyment of “the rights and freedoms set forth in […] the Convention”, Article 1 of Protocol No. 12 extended the scope of protection to “any right set forth by law”. It thus introduced a general prohibition of discrimination. The applicants contested the constitutional provisions rendering them ineligible to stand for election to the Presidency of Bosnia and Herzegovina. Consequently, whether or not elections to the Presidency fell within the scope of Article 3 of Protocol No. 1, their complaint concerned a “right set forth by law”, which made Article 1 of Protocol No. 12 applicable. The Court reiterated that the concept of discrimination was to be interpreted in the same manner with regard to Article 14 and in the context of Article 1 of Protocol No. 12, although the latter provision had a different scope. It followed that, for the reasons put forward with regard to the elections to the House of Peoples, the constitutional provisions under which the applicants were ineligible for election to the Presidency had also to be considered discriminatory. Accordingly, the Court concluded by 16 votes to one that there had been a violation of Article 1 of Protocol No. 12. The Court also considered, unanimously, that it was not necessary to examine the case under Article 3 of Protocol No. 1 taken independently or in conjunction with Article 1 of Protocol No. 12.

Based on the ruling BiH should adopt amendments to the Constitution and Electoral law, eliminating all kind of discrimination based on the ethnic background when it comes to the election of the BiH Presidency and House of Peoples of the BiH Parliamentary Assembly.

5. PROPOSAL FOR CONSTITUTIONAL REFORM. PART ONE: REFORM OF THE BOSNIA AND HERZEGOVINA PARLIAMENT

 When it comes to the BiH Parliament, the first think to be done is to rectify the linguistic flaw: the pleonasm in the name of the parliament – the Parliamentary Assembly, which in essence means Parliamentary Parliament[8] . This is linguistically incorrect – the parliament should simply be called Parliament, Assembly (Skupština) or Sabor of Bosnia and Herzegovina. Having in mind the historical tradition of Bosnia and Herzegovina, it would be interesting to call the parliament Sabor, referring, inter alia, to the first modern Bosnian parliament of the early 20^th century. On the other hand, considering that this term resembles excessively the legislative institution of the neighbouring Croatia (likewise, the term Assembly resembles the National Assembly of Serbia), perhaps it would be the most neutral to call the parliament simply the Parliament of Bosnia and Herzegovina.

And now we reach the essential question: how to eliminate the discrimination of “Others” which is reflected in violation of their right to be elected and to fully participate in the legislative procedure in the House of Peoples? In my opinion, to answer this question we must first examine the following issue: What is the House of Peoples – what is its role in the political system, and therefore in the legislative process of BiH?

Article IV of the Constitution refers to the bicameral system, with the House of Representatives and the House of Peoples, both with the same competences. Bicameralism is typical for federal states[9] , and therefore it is not surprising that the BiH Constitution opted for two houses. However, the common purpose of the second house in federal states is to ensure a stronger representation of federal units. The composition of one house is based on the number of inhabitants, whereas in the second one, all entities, i.e. federal units, have the same number of seats (Switzerland, USA), or at least the smaller entities enjoy higher representation (Germany) in relation to the population. In BiH, this is entirely different: in both houses, two thirds of the members come from the Federation of Bosnia and Herzegovina, with the difference that the House of Peoples represents only Bosniaks and Croats from the Federation, and only Serbs from Republika Srpska. Accordingly, the House of Peoples is not reflecting the federal character of the state – it is an additional mechanism in favour of constituent peoples. The basic function of the House of Peoples, according to the Constitution, is in fact to act as the house that uses the vital national interest veto[10]. The shortcoming of such an arrangement is that the House of Representatives becomes a legislative institution where necessary compromises are made in order to achieve a majority. The role of the House of Peoples is only negative, as a Veto House, where members perceive the protection of the interests of their own people as their sole, exclusive task, without significant participation in the legislative process.

With all this in mind, an analysis of the Konrad Adenauer Foundation, carried out by a group of authors and covering the research period from 1996 to 2007, revealed the following (surprising) fact: in the observed period, the House of Peoples failed to perform its basic function – the protection of vital national interests. In 11 years, the procedure as to the protection of these interests was initiated in only four cases. Besides, the party structure of this house is often identical to the structure of the leading political parties represented in the House of Peoples. Therefore the disharmony of the houses is rather rare. Contrary to its nature, the House of Peoples has much more often used the instrument of entity voting, thereby blocking the parliamentary decision-making[11] . Hence, as suggested by the Venice Commission of 2005 as well, it seems that it would be preferable to move the exercise of the vital national interest veto to the House of Representatives and abolish the House of Peoples. This would harmonize the procedures and enable the adoption of laws without impeding the legitimate interests of any people or the “Others”. This would also solve the problem of discriminatory composition of the House of Peoples.

The result of such Constitutional amendments, when it comes to the House of Peoples, would be the following:

1. Abolish discrimination of “Others”, since the discriminatory house, the House of Peoples, would no longer exist, and that election for the House of Representatives is of a general character, and does not envisage any ethnic parties, i.e. exclusion of citizens on any ground.
2. Abolish discrimination of Bosniaks and Croats from Republika Srpska, and Serbs from the Federation of Bosnia and Herzegovina, who, together with “Others”, have so far been discriminated and prevented from the election to the House of Peoples. This re-composition of the BiH Parliament would provide a solution for yet another problem (case “Pilav vs. Bosnia and Herzegovina”, at the European Court of Human Rights).
3. Conduct legislative procedures in one institution/body, which would enable the legislative process to become more transparent for the public, by enhancing the capacities of academic, advisory, expert and administrative bodies in the Parliament. This should enable a faster, more efficient and more democratic work of the legislative power.
4. Place the legislative process in the hands of legitimate representatives of the citizens. Considering that the House of Representatives is elected in direct election, while the House of Peoples has hitherto often been the house filled by those unable to enter other directly elected bodies. There is a huge number of examples that unsuccessful candidates as members of the BiH Presidency were elected to the House of Peoples (e.g. Mladen Ivanić of the PDP, Sulejman Tihić of the SDA, Borjana Krišto of the HDZ, etc.). Delegates in the House of Peoples were often the representatives of political parties and their election was a result of the interests of big political parties and not of the will of the people.
5. Bosnia and Herzegovina would lose one feature pertaining to federal systems, considering that the bicameral parliament is most frequently the characteristic of complex states[12] . However, as already said, the House of Peoples in its actual structure does not represent a classic second house, as it is not the house of federal units, but the house of constituent peoples. This would symbolically contribute to the integration of the state, although Bosnia and Herzegovina through its two entities and the Brčko District is a federally organized state, the abolishment of the House of Peoples would reduce one of the numerous characteristics of federalism and potentially contribute to the unification of Bosnia and Herzegovina.
6. The formation of the House of Peoples depends on cantonal parliaments and the House of Peoples of the Federation BiH, that elect the delegates to the House of Peoples of the Parliamentary Assembly BiH. This process takes a lot of time and can block the work of the Parliamentary Assembly. This kind of dependency would no longer exist.
7. With the abolishment of the House of Peoples the legislature would become more cost efficient. The budget expenditures intended for the salaries of the delegates and administration of the House of Peoples would decrease significantly. At this moment, BiH spends around 1.000.000 KM (500.000 EUR) every year only for the delegates’ salaries. These resources could be used instead to strengthen the unicameral parliament, especially its expert pool.

If Sejdić and Finci vs. Bosnia and Herzegovina verdict is implemented in such a way that one question still remains open: how to satisfy interests of some national parties which would not be willing to waive the instrument of “protection of vital national interest", bearing in mind that their votes are necessary to adopt these amendments?

One possibility would be to move the “protection of vital national interest”, in the form of the „collective vital interest“, to the House of Representatives, in such manner as to entitle the Constitutional-Legal Committee of the House of Representatives (i.e. the future unicameral parliament) to decide on this issue. Moving from „vital national interests veto“ to „collective vital interests“, the veto mechanism would not be available only to constituent peoples, but also to “Others”. The Constitutional-Legal Committee is the committee through which all laws should pass anyway, as it is the one that defines the extent to which a law is in accordance with the BiH Constitution. On the other hand, it guarantees the representation of all constituent peoples, and the representation of “Others” should also be guaranteed. In addition, the “collective vital interest” should in that case be defined as a form of “positive discrimination” guaranteed both to the constituent peoples and “Others”. The Constitutional-Legal Committee would in that case decide whether there is a breach, and if there is, the bills would be addressed to the BiH Constitutional Court, as the House of Peoples used to do. BiH Constitutional Court would then render the final decision on the possible violation of the “collective vital interests”.

Another solution is the formation of ad hoc Caucuses of constituent peoples/Others within the House of Peoples (the only House). The club of one constituent peoples and/or “Others” would be composed of all elected parliamentarians of that constituent people/”Others”. Any parliamentarian can ask for the meeting of his people’s club (“Others” would have the same right) in case he/she considers a decision as destructive for the collective vital interest. If the Caucuses decide with a (50%+1) majority, then the decision will go to a joint commission (4 members, Bosniac+Serb+Croat+Other) and if they cannot agree within 10 days, the law proposal will go to the BiH Constitutional Court for a final decision.

We can assume, based on the aforementioned study of the Konrad Adenauer Foundation[13] for the period 1996-2007, that the instrument of protection of vital national interest would be seldom used or even not at all, since the House of Representatives (the future unicameral House) has other mechanisms, such as “the entity veto” which has in any way been the cause of the non-adoption of a large number of laws. As much as 59% of the not adopted laws in the period 1996 to 2007 were rejected because of the absence of the entity support[14]. Unfortunately, although it would be important, due to the depth of the subject, we cannot discuss the issue of “the entity veto” or possible interrelation between the “entity veto” and the “protection of vital national interests/collective vital interests".

As already pointed out in the opinion of the Venice Commission of 2005, it is necessary to precisely and rigidly define the collective vital interest. The Constitutional Court by its decision of June 25^th, 2004[15] started to interpret this concept. It is correct that the future jurisprudence of the Constitutional Court can offer a definition of the collective vital interest and reduce the risk inherently existing in that mechanism. However, this might take time, and it seems inappropriate to leave such a task, with significant political implications, to the Court itself, without any guidelines given in the Constitution. As envisaged by the “April Package” of constitutional reforms, the collective vital interest could include the following rights: the right of all three constituent peoples and “Others” to be represented in legislative, executive and judicial bodies (maybe through minimum quotas) and to enjoy equal rights to participate in decision-making; the rights related to: collective identity (education, use of language and alphabet, religious and culture identity, tradition), establishment of public institutions, public information system, and preservation of the integrity of Bosnia and Herzegovina.

We need to point out certain particularities related to the size, structure and the election procedure for the future unicameral parliament. The parliament represents the citizens. It is very important to define the constituency areas for the election of MPs. As in many federations, the current constituencies in Bosnia and Herzegovina are formed within federal units. The solution envisaged by the Constitution and the Election Law does not deviate from solutions known in federal states, so it would not be a curiosity and inappropriateness if such practice would remain. On the other hand, in case of creation of supra-entity constituencies, that would include territory of both entities, the elected representatives would not represent citizens of entities, but citizens of Bosnia and Herzegovina in a true sense of that expression. This would end the domination of ethnic voting, since constituencies would also become multinational which in turn would require shift in focus of the election programmes of national parties, in order to gain votes from different ethnic groups within a specific constituency.

The equal participation of Others has to be ensured in all parliamentary committees and other bodies, wherever quotas for constituent peoples are foreseen. If the Collegium/collective head of parliament will foresee quotas for constituent peoples, then the Others need to be equally represented too, by having a fourth seat in the Collegium.

It is necessary to increase the number of MPs. With its actual 42 MPs, Bosnia and Herzegovina can compare with the European “dwarf” states: Andorra, Lichtenstein or San Marino. The state of more than three million inhabitants must have a parliament with an at least double number of MPs, in order to establish a truly “working” parliament. Only an adequate number of MPs can enable the work in parliamentary committees, so parliament is not only a venue for execution of government’s recommendations and party deals that are currently made outside the parliament, but can independently influence the process of political decision-making. A larger number of MPs needs to be followed by a larger number of electoral units (decries the size of current electoral units). In that way, the MPs will be closer to their voters (physically, but also in terms of adequate representation of their voters). Currently a MP from Velika Kladusa is also representing the interests of citizens of Tomislavgrad or somebody from Trebinje is represented by a MP from Zvornik (more than 300 km distance).

Finally, in the spirit of the judgment in the case Sejdić and Finci vs. Bosnia and Herzegovina, the Parliament should consider the introduction of compulsory seats for representatives of national minorities, as it is the case in many European states. Of course, the exact manner of implementation of such a decision should be developed through international comparison and in consultations with international advisory bodies, such as the Venice Commission and the like. The minimum number of compulsory seats for the representatives of constituent peoples and “Others” should also be taken into consideration.

6. PROPOSAL FOR CONSTITUTIONAL REFORM. PART TWO: REFORM OF THE EXECUTIVE POWER IN BOSNIA AND HERZEGOVINA

 In order to answer the question how to reform the collective Presidency of Bosnia and Herzegovina and thus remove the discriminatory elements defined by the verdict of the Strasbourg court, it is necessary to refer to the very nature of the collective Head of the State and its relation with the Council of Ministers of Bosnia and Herzegovina, considering that these two institutions jointly exert the executive power at the state level.

The Venice Commission concluded in its analysis of 2005:

“A collective Presidency is a highly unusual arrangement. As regards the representational functions of Head of State, these are more easily carried out by one person. At the top of the executive there is already one collegiate body, the Council of Ministers, and adding a second collegiate body does not seem conducive to effective decision-making. This creates a risk of duplication of decision-making processes and it becomes difficult to distinguish the powers of the Council of Ministers and of the Presidency. Moreover, the Presidency will either not have the required technical knowledge available within ministries or need substantial staff, creating an additional layer of bureaucracy. A collective Presidency therefore does not appear functional or efficient. Within the context of Bosnia and Herzegovina, its existence seems again motivated by the need to ensure participation by representatives from all constituent peoples in all important decisions […]. The best solution therefore would be to concentrate executive power within the Council of Ministers as a collegiate body in which all constituent peoples are represented”.[16]

In order to honour the conclusion that the executive power should be concentrated in the Council of Ministers, as a collegiate body representing all constituent peoples, which nevertheless, pursuant to Article 6 of the Law on the Council of Ministers, leaves the possibility for election of one minister from the group of “Others” and thus not being discriminatory per its composition, in this paper we propose the complete abolishment of the Presidency of Bosnia and Herzegovina. This proposal, of course, does not originate from pure theory, nor is it an experimental example, but is practically founded in the Swiss political system. As already known, although the political systems of Switzerland and Bosnia and Herzegovina are largely different, some authors nevertheless point to notable similarities[17] , so that parallels can certainly be drawn.

The result of such constitutional amendments would be the following:

1. The executive power in Bosnia and Herzegovina would concentrate in a single body, which would prevent further blockage or disputes such as those which have already happened between the current Council of Ministers and the BiH Presidency, e.g. when the state budget was about to be adopted. After being professionally prepared by the ministries’ administration, it was proposed to the Presidency by the Council of Ministers. Due to different political views the proposal was amended by the Presidency resulting with the third version of the law to be adopted in the Parliamentary Assembly. In short, the executive power would be concentrated in one institution.
2. The existing flaws in the work of poorly organized and understaffed Presidency would be eliminated, since all policies, which so far have been divided between the Presidency and the Council of Ministers (e.g. foreign policy) would now fall under the competence of the Council of Ministers, which is better staffed.
3. Political crises, which can be caused by the fact that a group of parties holds a majority or a part of majority in the Parliament and therefore in the Council of Ministers while another group of parties has its representatives in the Presidency, would be avoided or eliminated.
4. By abolishing the Presidency, Bosnia and Herzegovina would in the formal sense loose the “Head of the State”, the institution, which is the supreme representative of the “peoples”. In BiH case this would not leave too many negative consequences. Due to the dominant multi-ethnic character of the state we cannot consider BiH to be a “state/constitutional nation” (German: Verfassungsnation), as it is the case in the mono-ethnic countries of Europe.
5. By abolishing the BiH Presidency and vesting the executive power in the BiH Council of Ministers, Bosnia and Herzegovina would shift from the current semi-presidential political system to the group of states with parliamentary political system. To conclude, after all the above-proposed reforms, the BiH political system would become parliamentary and unicameral.

The described constitutional amendments would have large consequences on the competences of the “strengthened” Council of Ministers, the manner of its election, and representation of the “Others”, as well as on the work and decision-making within the Council of Ministers itself.

The Council of Ministers would take over the competences which according to the constitutional provisions have so far been vested in the actual Presidency of Bosnia and Herzegovina. These provisions have been defined in Article V.3 of the Constitution, pertaining to:

1. foreign policy of Bosnia and Herzegovina and appointing ambassadors and other international representatives of Bosnia and Herzegovina;
2. representing Bosnia and Herzegovina in international and European organizations and institutions, and seeking membership in international organizations and institutions of which Bosnia and Herzegovina is not a member;
3. negotiating treaties, denouncing and, with the consent of the Parliamentary Assembly, ratifying treaties;
4. executing decisions of the Parliamentary Assembly;
5. proposing annual budget to the Parliamentary Assembly, upon the recommendation of the Council of Ministers, reporting to the Parliamentary Assembly on expenditures of the Presidency, as requested, and at least once a year;
6. coordinating as necessary with international and non-governmental organizations in Bosnia and Herzegovina;
7. performing other functions as necessary to carry out its duties, and as assigned by the Parliamentary Assembly, or as agreed upon by the entities.

Further on, the Presidency is entitled to nominate the Chair of the Council of Ministers (to be approved by the House of Representatives) (Article V.4 of the Constitution), dismiss the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina (Article 44 of the Rules of Procedure), accept credentials from diplomatic-consular representatives (Article 6 of the Rules of Procedure of the BiH Presidency), submit petitions to the Constitutional Court (Article 10 of the Rules of Procedure), perform civilian command of the armed forces, and symbolic competences, such as the certification of the symbols of Bosnia and Herzegovina, upon the decision adopted in the Parliamentary Assembly (Article 40 of the Rules of Procedure), appointment of five members of the Committee for the Preservation of National Monuments (Article 41 of the Rules of Procedure) and appointment of five members of the Governing Board of the Central Bank of Bosnia and Herzegovina (Article 54 of the Rules of Procedure).

When observing these competences of the Presidency, it can simply be concluded that in the majority of cases there are two forms of action. The first one pertains to conduct and practical implementation of foreign policy, which the Council of Ministers and the Ministry of Foreign Affairs can simply take over, respecting the existing principles (if possible, consensual decision-making and respect of an equal representation both of the constituent peoples and “Others”). The other field of work covers standard appointments and confirmations, which can as well be carried out by the Council of Ministers as a collective body, or by individual Ministries. The only issues that remain open are the appointment of the Chair of the Council of Ministers, which can be done by the Speaker of the future unicameral parliament, and the issue of civil control of armed forces, which can be given to the parliamentary committee (with the representation of constituent peoples and “Others”).

The status of the Council of Ministers is ambiguously defined in the Constitution. The legal definition that the Council of Ministers is the executive power should be confirmed in the Constitution. Thereby, as already stated, the constitutional amendments would make the Council of Ministers the sole body of executive power, to carry out a large part of competences which hitherto have been exerted by the BiH Presidency, particularly referring to the budget proposal and foreign policy. At the same time, this would require the establishment of new ministries. Particularly in the context of European integration, it is unquestionable that the state level will have to become competent for a set of fields. The current number of ministries does not have management capacities. The composition of the Council of Ministers should represent both entities, i.e. all constituent peoples and “Others”. Proportional representation is possible, but it should not be the exclusive principle for the election. The example of Switzerland is again interesting in this context. Article 175 Paragraph 4 of the Constitution of the Swiss Confederation reads: “In electing the Federal Council, it must be ensured that the various geographical and language regions of the country are appropriately represented”. It is interesting that, although Switzerland is a state with large language, geographic, religious, ideological and economic diversities, this is the only written quota when it comes to the appointment of the federal government. However, the political culture and consensual approach to democratic decision-making resulted in the following tacit rules:

Table 1: Representation quota in the Swiss Federal Council[18]

In Swiss practice, this means that out of seven members of the state government (Federal Council) at least 2 or 3 members are always from the francophone or Italian language region, although they represent less than 30% of population. All regions are geographically represented, and when it comes to gender equality, it can be noted that currently there are four male and three female ministers. What Switzerland is worldwide famous for and what is the basis of its consensual democracy is the party composition of the federal government. Since 1959, four of the strongest and ideologically most combative parties have been governing jointly, whereas since 2009 there have been as many as five parties[19] . Together, they have more than a 70% majority in the Parliament.

BiH parties have to work on building similar principles, so that the future Council of Ministers, which would incorporate the role of the current Presidency, would share similar values that in our case as well should become tacit rules, which would result with more female ministers, decentralization of ministers’ origin (they should not come only from the centres of power: Sarajevo, Banja Luka and Mostar), and the rule of inclusion and balance between all big parties. In order for this proposal to be adopted in the parliamentary procedure, I assume that fixed ethnic quota cannot be avoided within the current framework. In that case, we propose minimum quotas, i.e. that each constituent people and “Others” are represented by minimum 20% of ministerial seats, whereas one fifth of the seats would be allocated according to the success of the biggest parties, with clear compulsory representation of “Others”. The current Law on the Council of Ministers envisages only a possibility and not the obligation for one ministerial seat or the position of Secretary General of the Council of Ministers to be filled by “Others” (Article 6 of the Law). Both genders should be presented by at least 40%. Nevertheless, it would be interesting if “written rules” (ethnic quotas) would be transformed into political culture of BiH parties and peoples.

In other words, in order to guarantee the ethnic balance of the new Council of Ministers and remove the fear that a member of only one ethnic group would preside over the four-year term of office, we propose to refer to the Swiss political system in this respect as well. Switzerland recognizes the institution of the acting president, the so-called “Federal President” (President of the Confederation) who is elected for a one-year term of office by the Federal Assembly of Switzerland (Article 176 of the Constitution of the Swiss Confederation). The Federal President chairs the debates in the Federal Council (government), represents the Council in relation to other institutions, and ceremonially represents Switzerland in foreign policy (Article 184 of the Constitution of the Swiss Confederation). If Bosnia and Herzegovina opt for such a principle, it would increase the accountability of the Council of Ministers towards legitimate representatives of the peoples, i.e. the Parliament of Bosnia and Herzegovina, as the Chair of the Council of Ministers, who would at the same time represent Bosnia and Herzegovina, would be the person elected for a one-year or perhaps two-year term of office. Upon the expiry of his/her term of office, the BiH Parliament would decide on the successor of the former Chair, respecting the principle of rotation. Thus it should be regulated that two Chairs in a row cannot come from the same constituent people or from “Others’, thus granting the possibility of equal representation of all peoples and “Others”, yet not fixing rigid rotations which sometimes can be at the expense of the quality of work, i.e. can lead to compulsory election of a member of a group although the offered candidates are not the best choice for directing the state politics.

In the end we need to briefly discuss the decision-making within the Council of Ministers. Critics of this proposal might say that, considering the ethnic divisions in the state and the ideological differences of parliamentary majorities electing the Council of Ministers, the desired consensus would not be reached in a large number of cases. This critique is indeed justified, if we observe the work of the former Councils of Ministers; however, we need to raise a question: do we have a consensus in the existing Presidency of Bosnia and Herzegovina? When we examine the work of the existing Parliamentary Assembly and its houses, we also notice absence of consensus, bearing in mind that a large number of laws have never been adopted due to, for example, “entity veto”[20] . Therefore, the lack of consensus is not a sufficient obstacle for the abolishment of the Presidency, i.e. by merging the two weak executive institutions (the Presidency and the Council of Ministers) into one, relatively strong executive institution, the future Council of Ministers.

7. CONCLUSION

The proposal for the implementation of the decision in the case Sejdić and Finci vs. Bosnia and Herzegovina of the European Court for Human Rights titled unicameral parliamentary political system in Bosnia and Herzegovina is built upon the proposals of the Venice Commission and the Swiss political system. The proposals include:

1. Abolishment of the BiH Presidency and transferring executive powers and competences to the BiH Council of Ministers. The BiH Council of Ministers would be the central executive body, with the representation of constituent peoples and “Others”. The executive body would become more functional and simpler. This would prepare the ground for a more intensive engagement in the Euro-Atlantic integration.
2. Abolishment of the BiH Parliamentary Assembly’s House of peoples and creating a unicameral parliament that would include the power of veto for the protection of collective vital interests. This veto would be available to both constituent peoples and “Others”. The parliament would be twice bigger, with an equal representation of “Others”. The legislative process would become more efficient and transparent. In return, this would create the necessary preconditions for the parliament to become a central institution of the BiH political system.

The proposed model might be a radical one, but it could be also a logical and simple solution.

Bibliography

ABAZOVIĆ, Dino (et. al.) (ed.), Mjesto i uloga «ostalih» u Ustavu Bosne i Hercegovine i budućim ustavnim rješenjima za Bosnu i Hercegovinu, Institut za društvena istraživanja Fakulteta političkih nauka, Sarajevo, 2010.

ARNAUTOVIĆ, Suad, Političko predstavljanje i izborni sistemi u Bosni i Hercegovini u XX stoljeću, Promocult, Sarajevo, 2009.

BAKŠIĆ-MUFTIĆ, Jasna, Sistem ljudskih prava, Fond otvoreno društvo BiH and Magistrat, Sarajevo, 2002.

BIEBER, Florian, Bosna i Hercegovina poslije rata: Politički sistem u podjeljenom društvu, Buybook, Sarajevo, 2009.

BEGIĆ, Kasim, Bosna i Hercegovina od Venceove misije do Daytonskog sporazuma (1991-1996.), Bosanska knjiga, Sarajevo, 1997.

DIZDAREVIĆ, Srđan (et. al.), Procjena razvoja demokratije u Bosni i Hercegovini, Fond otvoreno društvo BiH, Sarajevo, 2006.

European Court for Human Rights, Leitfaden zu den Zulässigkeitsvorraussetzungen, Strasbourg, 2010.

European Court for Human Rights, The ECHR in 50 questions, Strasbourg, 2012.

HAFNER FINK, Danica, Mirko PEJANOVIĆ, Razvoj političkog pluralizma u Sloveniji i Bosni i Hercegovini, Promocult, Sarajevo, 2006.

GAVRIĆ, Saša, Damir BANOVIĆ (eds.), Parlamentarizam u Bosni i Hercegovini, Sarajevski otvoreni centar, Fondacija Friedrich Ebert, Sarajevo, 2012.

GROMES, Thorsten, Demokratisierung nach Buergerkriegen. Das Beispiel Bosnien und Herzegowina, Campus Verlag, Frankfurt/Main, 2007.

HAVERIĆ, Tarik, Ethnos i demokracija, Rabic, Sarajevo, 2006.

HODŽIĆ, Edin, Nenad STOJANOVIĆ, Novi-stari ustavni inženjering?: izazovi i implikacije presude Evropskog suda za ljudska prava u predmetu Sejdić i Finci protiv BiH, Centar za društvena istraživanja Analitika, Sarajevo, 2010.

IBRAHIMAGIĆ, Omer, Zarije SEIZOVIĆ, Suad ARNAUTOVIĆ, Politički sistem Bosne i Hercegovine, Promocult, Sarajevo, 2010

KASAPOVIĆ, Mirjana, Bosna i Hercegovina: Podijeljeno društvo i nestabilna država, Politička kultura, Zagreb, 2005.

KEIL, Soeren, “Mythos und Realitaet eines ethnischen Foederalismus in Bosnien und Herzegowina”, Suedosteuropa-Mitteilungen, Vol. 1, Sarajevo, 2010.

KULENOVIĆ, Nedim, Inja HAŽIALIĆ-BUBALO, Mirza KORAJLIĆ, “Presuda Sejdić i Finci protiv Bosne i Hercegovine: Konkretne posljedice - prvi pregled, Sveske za javno pravo”, Vol. 1-2, Sarajevo, 2010.

LIJPHART, Arend, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries, Yale University Press, New Haven, 1999.

MARKO, Joseph, “United in Diversity? Problems of State and Nation-building in Post-conflict Situations: The Case of Bosnia and Herzegovina”, Vermont Law Review, Vol. 30, No. 3, 2006.

MARKOVIĆ, Goran, Bosanskohercegovački federalizam, University Press, Sarajevo, 2012.

MOECKLI, Silvano, Politički sistem Švajcarske: kako funkcioniše, ko učestvuje, čime rezultira, University Press, Sarajevo, 2010.

ŠARČEVIĆ, Edin, Ustav i politika. Kritika etničkih ustava i postrepubličkog ustavotvorstva u Bosni i Hercegovini, Vijeće Kongresa bošnjačkih intelektualaca, Sarajevo, 1997.

ŠARČEVIĆ, Edin, Dejtonski ustav: Karakteristike i karakteristični problemi, Fondacija Konrad Adenauer, Predstavništvo u Bosni i Hercegovini, Sarajevo, 2009.

ŠARČEVIĆ, Edin, Ustav iz nužde: konsolidacija ustavnog prava Bosne i Hercegovine, Rabic, Sarajevo, 2010.

TAFRO, Sead, Bosna i Hercegovina ka Evropskoj Uniji : razvoj institucija Bosne i Hercegovine u procesu euro-atlantskih integracija sa posebnim osvrtom na Vijeće ministara, Sarajevo Publishing, Sarajevo, 2011.

TRNKA, Kasim (et. al.), Proces odlučivanja u Parlamentarnoj skupštini Bosne i Hercegovine, Fondacija Konrad Adenauer, Predstavništvo u Bosni i Hercegovini, Sarajevo, 2009.

VEHABOVIĆ, Faris, Odnos Ustava Bosne i Hercegovine i Evropske konvencije za zaštitu ljudskih prava i osnovnih sloboda, ACIPS, Sarajevo, 2006.

ŽIVANOVIĆ, Miroslav (ed.), Ljudska prava u Bosni i Hercegovini 2008. Pravo, praksa i međunarodni standardi ljudskih prava sa ispitivanjem javnog mijenja, Centar za ljudska prava Univerziteta u Sarajevu, Sarajevo, 2009.