323. Constitution Drafting in Bosnia and Herzegovina

Staff-prepared summary of a seminar held on May 10, 2006 with Robert Hayden, Professor of Anthropology, Law and Public & International Affairs, Director of the Center for East European and Russian Studies, University of Pittsburgh and R. Bruce Hitchner, Chair of the Dayton Project and Professor of International Relations, Tufts University. Meeting Report 323.

Ten years after the adoption of the Dayton Accords, the awkward, redundant, expensive and often ineffective institutional structure that resulted from that process is largely still in place today. Careful not to give too much power at the federal level to any one ethnic group, the Dayton Accords divested power from the center to local governing bodies. Among other problems, the nearly powerless central government was not granted authority over crucial state interests—such as defense, taxation and the environment—which are necessary for Bosnia and Herzegovina to accede to the European Union.

R. Bruce Hitchner described the goals and methods of the Public International Law Group's "Dayton Project," which created a process for bringing the relevant parties to the table in Bosnia to discuss, and hopefully adopt constitutional, amendments. The Project's goals were to negotiate a package of constitutional reforms according to Euro-Atlantic norms, to enhance human rights commitments and to make the Bosnian government more cost-effective, smaller and more efficient. The negotiations were conducted in executive session, so that discussion was not for press attribution, in an effort to reduce public chatter over specific issues and thereby improve the chances that consensus could be reached.

There was no initial consensus, by the international or Bosnian participants, about what the outcome of the process would be. The Dayton Project aimed at creating an "authentic" process of constitution making, which was driven and owned by the government representatives. The meetings began in March 2005, with the idea that draft amendments would be ready for public discussion by November 2005, and then adopted by the legislature by March 2006. The fast pace was due in part by the desire to put reforms into place before the next elections, scheduled for fall 2006.

To begin the discussion, the parties were invited to focus on the most important problems facing the country and debate was restricted to weighing the options for dealing with those issues. International observers, some from the Venice Commission, were present only in a supportive capacity to offer examples of how other countries have dealt with similar problems. The Secretariat, as the Dayton Project staff and observers were called, did not lead discussion, but simply offered options for the government representatives to consider. The Secretariat also worked on creating detailed reports of what had been agreed upon during the meeting, in the hope of creating a transparent process.

As a first step, the discussion focused on finding agreement among the parties on the definition of "vital national interests," which Hitchner described as being the lynchpin for achieving consensus on the constitutional amendments. The idea was that the leaders of the three ethnic groups might begin to view Bosnia as a unitary state by working to resolve issues in which all people shared common interests. Once agreement was reached on which vital interests bound all the consitutent people of Bosnia, it became possible to move decision-making away from the deadlock that has plagued the Bosnian government for a decade. It was also agreed that if the Entities ceded power, they could not take it back without the agreement of the federal government. Finally, the participants agreed that the federal government should be empowered to deal with the European Union, which offered the participants a guide for where to focus in the empowerment of the state at the federal level.

The agreement reached through this process proposed several important changes to the institutional structure of Bosnia and Herzegovina. First, the system in which three presidents were directly elected (one by each ethnic group) was streamlined so that there would be one president and two vice presidents, each elected indirectly by the House of Representatives. Joint approval of the president and the vice presidents would only be required for the selection of Constitutional Court justices, the board of the Central Bank and regarding military policy. Second, the house of the Peoples, which currently consists of 15 directly elected delegates (three from each Entity) was changed to 21 delegates, each elected indirectly by the House of Representatives. Moreover, the powers of the House of Peoples were diminished, such that it would only review legislation for issues of vital national interest, rather than having full legislative powers. The bicameral Parliament was maintained, but the size of the House of Representatives was increased from 42 to 87 delegates.

Third, the agreement created the institution of the Prime Minister, who would be empowered to select (and dismiss) the Council of Ministers with the approval of the Parliament and would set the priorities, policies and timelines for the Council's work. In order to avoid deadlock, the Prime Minister could overrule the Ministers and if a decision could not be reached by consensus of the Council, the Prime Minister could pass a decision with the approval of at least one Minister from each ethnic group.

Fourth, authority over issues such as defense and security, the judiciary and taxation were transferred from the entity level to the central government. In addition, the agreement created a Ministry of Agriculture and a Ministry of the Environment, which are vital institutions in the EU accession process. Finally, the agreement gave the central government all authority necessary to implement the requirements for EU accession and membership.

The process that created this agreement on constitutional amendments proved that although ethnic leaders could be difficult, they are not blind to the need for government reform. The draft constitutional amendments were brought to a parliamentary vote on April 26, 2006. To the Dayton Project's dismay, the reform effort fell two votes short of the two-thirds majority needed for it to pass.

Hitchner blamed the failure of the initiative, on the one hand, on a few Croatian delegates from Herzegovina who felt that the amendments went too far and, on the other, because one of the Bosnian Muslim parties felt that they did not go far enough in creating a strong central government. The failure of the amendments in Parliament showed that politics in Bosnia is still bogged down by the past; that political parties are more interested in preserving their power than creating a viable state; and that few people are able to envision a hopeful future and take the necessary steps to begin the EU accession process.

Although many observers are now saying that the constitutional amendment process will surely be postponed until after the next parliamentary elections, Hitchner urged the international community to continue to support the process now, since it is unlikely that the post-election political climate will change dramatically. He also presented an alternative model for the constitution-drafting process, which entailed setting up a constitutional commission made up of scholars and political leaders who could not simultaneously hold political office. Like the process put into place by the Dayton Project, the commission would have a full support staff and make decisions by consensus on reforms through a legitimate and authentic process. Hitchner concluded that Bosnia needs a new vehicle for continuing the reform process that does not rely heavily on the international community or the local political structure.

Robert Hayden offered a critical perspective on the constitutional reform process in Bosnia. He began by agreeing with the obvious point that constitutional reform was necessary. After all, the Dayton agreement did not create a workable state, but instead ended the war by creating a system of "lots of checks and little balance," in which anyone can block any proposal, thereby creating an institutional structure that could accomplish nothing. Indeed, the only institution that could accomplish anything in Bosnia is the Office of the High Representative (OHR). He also agreed with Hitchner that democratic elections will not provide a solution for the current crisis, since the electorate consistently supports nationalist parties, which always seem to work against the wishes of the international community and the OHR.

Hayden criticized the institutional structure put forward by the agreement on the constitutional amendments because it brought back the problems of government legitimacy. The Dayton Accords created a convoluted institutional structure precisely because governance of Bosnia and Herzegovina was only possible if power was given to the Entities. The amendments proposed would have disempowered the Entities, not only by transferring competence on taxation, security and agriculture to the federal level, but by giving the central government control over everything necessary to fulfill EU accession criteria, the amendments would have given carte blanche to the government to usurp power in nearly every policy sphere. Given this wholesale negation of the Dayton Accords, Hayden argued, it should have come as no surprise that the adoption of the amendments failed.

The reason Hayden gave for the failure of the constitutional amendment proposal was that Bosnia's leaders have failed to reconcile two competing visions of the state. On the one hand, there is a movement to unify Bosnia-Herzegovina through a citizenship-based government and, on the other, through a system of local ethnicity-based governments. Yet, Hayden reminded the audience that this problem was not the result of the war, but was in fact the cause of the war. He referred to the Vance-Owen plan, which stated that creating a centralized state in Bosnia would not be acceptable because it would not address the interests of at least one of the three parties. Even now, Hayden argued, it is unlikely that they would give up protecting their own interests.

Therefore, the attempt to create a centralized state based on citizenship, according to the French or American model, is doomed to failure in Bosnia, and Hayden sees little reason to support such attempts. Instead, Hayden urged Bosnian leaders and the international community to continue to work towards constitutional reform, but in the direction of creating a consociational system, following the Swiss or Belgian model. And the opportunity to do so is here, since, as both speakers noted, even if the three ethnic groups in Bosnia do not love each other, they do understand that they have an interest in cooperating with each other, and this opportunity should not be lost.