Its complex federal structure, ethnic-based vetoes, and institutional overkill[1] make Bosnia-Herzegovina (BiH)’s Constitution an exceptional constitutional arrangement. Though its peculiarity is acknowledged by both early and contemporary commentators, current discourse around constitutional changes are less unique, resembling in part populist debates that have emerged on the European stage in recent years.
Take, for example, the leading Bosnia-Croat party, HDZ, and its quest for legitimate representation. Fuelled by Zeljko Komsic’s re-election, the Croat presidency is largely supported by non-Croat voters. The core of their argument stems from the idea that what was constitutionalized in the Dayton Peace Agreement (and the Washington Agreement that preceded it) is the idea that the rights of peoples trump all other elements of the Constitution. This thinking is not that far from the conceptions of constituent power by modern European populists, who conceive of sovereignty as rooted in the people, which then grounds the basis of constitutionality.
Or take the challenge faced by foreign judges in the BiH Constitutional Court that both the SNSD – the main Bosnia-Serb nationalist party – and the remaining Serb parties consider a counter-majoritarian institution ruled by foreign judges who always side with the political causes championed by the Bosnian political class. There isn’t much difference between such arguments and Polish and Hungarian populists’ struggle against European Courts, including the Court of Justice of the European Union and the European Court of Human Rights. Foreign judges, the judicial elite, and other enemies of self-determination are juxtaposed to a referendum as the most democratic tool of decision making, something that Marine Le Pen promised in her 2017 election campaign. Some of these similarities make it hardly surprising that the SNSD manages to communicate effectively with international populists.
However, after referendums as a form of subversion of BiH institutions’ legitimacy fell out of fashion following the 2016 referendum on the Republika Srpska (RS) Day – whose results were not even officially published in the RS Official gazette – new forms of constitutional struggles have been en vogue. Surely, an attempt to create an independent judicial and prosecutorial council of RS may be seen as a mere ploy to undermine what is left of the Bosnian judiciary’s independence. Nonetheless, it also bears resemblance to the desires of the Polish Constitutional tribunal and the Romanian Constitutional Court, which both claimed that decisions on internal judicial matters may completely ignore EU Treaties when they fall under the category of national constitutional identity issues.[2]
However, one big difference between European populists and the SNSD’s and HDZ’s demands explains a major design flaw in the Constitution. That difference is that while European populists generally fight to change the Constitution,HDZ and SNSD fight to preserve it, presenting themselves as gatekeepers of its spirit and original intention while denying everything that has been achieved so far, even though their own votes. It follows that the BiH Constitution was a realization of a populist constitutional dream in its original design. Not only because every opportunity for an ethnic-based veto – which many proponents of communitarian rights advocate for[3] – was institutionalized, but also because of the international presence mirrored in the High Representative and the Constitutional Court which, is ideally positioned to govern and be blamed for undue external influence, just like an Italian populist would blame the European vincolo esterno whilst secretly praising its technocratic contributions.
The response by Sarajevo’s “pro-Bosnian” parties to the challenges posed by HDZ and SNSD has been largely reactive. With regards to the RS, most engagements concerned the requests for a judicial review of the legislation adopted by the RS National Assembly. As for HDZ’s demands for the creation of a separate electoral unit for the election of a Croat BiH presidency member, they are divided. On the one hand, the SDA – the main Bosnian nationalist party – takes a trade-off approach based on the principle that if they give into demands for a legitimate Presidency, the ethnic-based veto in the House of Peoples of the Federation of BiH will be limited. On the other hand, the non-ethnic based parties — Nasa stranka, DF, and SDP — remain committed to a model that would tilt the civic–ethnic balance to the side of the former. Loosely based on the failed April package model of the 2006 constitutional reforms, this model doesn’t enjoy much support across the country.
A more proactive approach focused on supporting a different agenda — instead of stopping the tide of SNSD and HDZ’s challenges — largely escaped them. For example, the fact that the BiH Constitution envisaged the existence of public corporations and essentially treats BiH as a common economic space was never exploited as a tool to create the equivalent of the expansion of competences that the Commerce Clause of the US Constitution did for the US federal government. Instead, the arguments that follow the US logic around constitutional thinking are to be found in RS government-paid lobbying efforts.
A more proactive approach that might include a structural response to populist constitutionalism didn’t emerge beyond the political parties. One of the reasons behind this was that since 2010 civil society donors have turned to other causes, such as gender equality and the fight against corruption. This has left very little space for popular constitutionalism to emerge as a bottom-up answer. However, there was room for such an approach; after all, BiH has a constitution that was never adopted or seriously debated by any of the country’s parliaments. Unfortunately, the donor community and the European Union did not deem constitutional reforms urgent.
This was a wrong turn to take. Despite their unfruitfulness, the promotion and talk of constitutional reform were at least keeping the topic alive in public discourse and getting potential negotiators and interlocutors of Bosnian political parties closer. For example, between 2006 and 2010, the Swiss Development and Co-operation Department financed trips for the Constitutional–Legal Committees of the BiH Parliamentary Assembly’s MPs as well as CSO representatives to Switzerland, where they were presented with different aspects of the Swiss constitutional design model. The Serb and Croat MPs’ enthusiasm, however, dissipated when they discovered the amount of money the national Swiss government has at its disposal, similarly to Bosnian MPs’ surprise when they realized Swiss cantons have their own border police. Nevertheless, this was still a genuine effort to promote feasible constitutional reform solutions.
In 2019, the EU revisited its approach to the changes to the BiH Constitution. After being marginal, this topic became part of fourteen priorities that, if achieved, would finally grant the country its long overdue EU candidacy status. However, in order to avoid a clear decision on a transfer of competences, a new clause to the Constitution set to ensure that the BiH fulfils its obligations to the EU was proposed. The clause would enable the national government to exercise the involved entities’ competences when exerting powers related to obligations towards the Union. Such an unclear formulation leaves much room for manoeuvre, different interpretations, and concerns: which competences, when, and how would be the subject of such decision? Communicating this effectively would require a reliable and far-reaching public channel.
Nowadays, in order to communicate the message to the public, the delegation of the European Commission organizes a randomly arranged assembly of citizens that represents a symbolic stand-in for a real constitutional assembly. While such an approach would have been perfectly logical back in, for example, 2010 — when the local CSOs built their own cross-entity working groups to work on constitutional amendments, it is difficult to imagine such an approach would carry much weight now. Quite simply, after a decade spent in the populist quagmire and secessionist threats, citizen-based approaches enjoy little credibility that would allow them to lead such a process. Moreover, BiH is no longer what it used to be in 2010: it is certainly more economically integrated, but it appears to be less of a shared political space. Against this backdrop, it is realistic to expect that the nationalist constitution fantasies of the 1990s will remain codified and that the cosmetic changes to the Constitution designed to satisfy the Commission will be enacted.
NOTES:
[1] Jens Woelk. "Bosnia-Herzegovina: Trying to build a federal state on paradoxes." in Constitutional BÜLENT SARPER AĞIR, BARIŞ GÜRSOY (2012).
[2] Luke Dimitrios Spieker. "Framing and managing constitutional identity conflicts: how to stabilize the modus vivendi between the Court of Justice and national constitutional courts." Common Market Law Review 57.2 (2020).
[3] E.g. see Cedric M. Koch. "Varieties of populism and the challenges to Global Constitutionalism: Dangers, promises and implications." Global Constitutionalism 10.3 (2021): 400, 409.
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