The Bosnian Constitution: facing the EU integration process

First of all, there was not a unitary “Bosnian people” in 1995. The Preamble of the Constitution recalls three ethnic groups – Bosniaks, Croats and Serbs – as constituent peoples, along with “Others”. Ethnicity plays a crucial role in every aspect of public life in the country. For example, to run for the Presidency or the Upper House of the Parliament, a citizen needs to be Bosniak, Croat or Serb. This provision infringes the political rights of about 400,000 Bosnian citizens about 12% of the population, who do not belong to any of the three constituent groups, refuse to identify ethnically, or do not meet the combination of requirements of ethnicity and place of residence.

Division along ethnic lines also reflects on the legislative process. The representatives of each ethnic group in the House of Peoples, the Upper chamber, and within the Presidency can resort to the power of a veto, when a proposed decision is considered to be “destructive of a vital interest” of the constituent peoples. The Basic Law also provides the so-called “entity veto”: in the absence of one-third of the votes of Delegates from the territory of each Entity, a law cannot be adopted. While minority veto might function in consociational legislatures, in Bosnia it is greatly misused and hinders the country’s governability. For instance, entity veto was invoked almost 400 times between 1997 and 2007. Legislative power also belongs to the High Representative, who can override an internal stall and impose legislation or even remove public officials from their offices.

It is up for debate whether the constitutional ethnic partition or the absence of political cooperation is the major obstacle to constitutional amendment. As Joseph Marko suggests, there are other virtuous examples of ethnically divided governance systems within the EU and the Autonomous Province of South Tyrol is one of those. Through revisionism and genocide denial the problematic “negative consensus” built by ethno-nationalist parties lead to the breakdown of inter-ethnic cooperation. Thus, ethno-nationalist parties inserted themselves into the furrows drawn by the Constitution, consolidating daily ethnic partition to remain in office.

To break the vicious circle, pressure needs to be put on politicians from multiple sides: civil society, national multi-ethnic parties and the EU. This should encourage bottom-up approaches, presenting the EU as a safe space within which gradual participatory process could eventually amend the Basic Law.

As a result of this pressure, the political will to amend the Constitution is more likely to arise and may even open up space for a participated constitution-amending process, that would go beyond the legislative bodies. Thus, the reformed Constitution would protect all ethnic groups, while reflecting a certain degree of consensus around the “constituent pact”.