Constitutional changes in Bosnia and Herzegovina

Ahmed Kulanić

In the post-war period, the Constitution of Bosnia and Herzegovina experienced several changes that came either as a result of the implementation of the decisions of the Constitutional Court of BiH (Appeal by Alija Izetbegović on the compatibility of the Constitution of the RS and the Constitution of the Federation with the Constitution of BiH in matters of the Constituent  people),  or  through the amending the same such as Amendment I to the BiH Constitution on the status of the Brčko District adopted in 2009). Although some authors claim that the BiH Constitution changed with the decisions of the High Representative in BiH, referring to the decisions of the High Representative regarding the transfer of competencies from entity to state level, it is important to point out that such decisions are not incorporated into the BiH Constitution, on the contrary, they are based on the existing provision of the Constitution BiH i.e. Article III, paragraph 5., states that: "Bosnia and Herzegovina shall assume competencies in those matters (...) necessary for the preservation of the sovereignty, territorial integrity, political independence and international personality of Bosnia and Herzegovina in accordance with the division of responsibilities between the institutions of Bosnia and Herzegovina. Additional institutions may be established as necessary to carry out such responsibilities."

In addition to these two important decisions that have influenced the BiH Constitution, in the past 23 years, there have been several important initiatives for changes of the Constitution of Bosnia and Herzegovina, among which the most widely known are: the April package, the Prud Agreement and the Butmir Package. These three most important initiatives that took place in the post-war period in Bosnia and Herzegovina have just touched upon the key provisions of the BiH Constitution regarding the internal organization and functioning of the state and its internal administrative units. However, all of these initiatives failed at a certain stage and were rejected by domestic politicians (the April package dropped in the BiH Parliament, while the Prud Agreement and the Butmir Package were rejected by the SNSD).

The April package, since the Dayton until today, was the most comprehensive attempt at Constitutional changes in Bosnia and Herzegovina – initiated by the US administration with strong EU support (especially Germany through its embassy in BiH). The April package collapsed in the Parliamentary Assembly of Bosnia and Herzegovina on April 26, 2006. The analyzes and (scientific) articles that followed the failure of the April package largely argued for the thesis that Bosnia and Herzegovina at least stagnated if it did not fall back after it. The disappointment of the international community after failing to make changes (it was often suggested that this was only the first phase of the Constitutional changes, followed by another that would deal with the responsibilities and position of the entities, later disclosed by US Ambassador McElhaney in his dispatch to Washington) resulted largely in the withdrawal of the IC from the future talks on constitutional changes in BiH. However, it is important to point out that nobody could guarantee with certainty the second round of talks on the changes of the Constitution of BiH, nor the fact that no one was able to disprove claims of Mr. Haris Silajdzic about the possibility of blocking the choice of holders of the largest state positions (Prime minister, President), but also the overall blockade of the work of the State Parliament. Therefore, the essential milestone of the April package was the withdrawal of the international community from the discussion on constitutional changes in BiH - which will be additionally confirmed through the British-German initiative and will result in the stagnation of Bosnia and Herzegovina on the path of EU and NATO integration. Furthermore, the significance of the April package of constitutional changes lies in the fact that even today the April package is seen as the basis or as an ideal of constitutional changes in Bosnia and Herzegovina.

It is unquestionable that Bosnia and Herzegovina, on its path of joining to the European Union, as one of the primary goals of the Bosnia and Herzegovina Foreign Policy Strategy, will have to change its Constitution, because it would be incomprehensible that the EU receives within its family a state against which there are judgments of the European Court of Human Rights in context of the open discrimination of one portion of its citizens. However, the inertia of the international community, especially the period from 2006 to the present, characterized as a period of EU leadership in terms of reforms in the Balkans, as well as in BiH, and "pushing under the carpet"  the key problems and challenges that BiH faces and that are the direct consequence of the non-functionality of constitutional settlement has resulted in the fact that Bosnia and Herzegovina fell from the leader in terms of European Integrations to the very last position according to the latest EU report. Furthermore, the focus of the international community, led by the EU through the German-British Initiative, to economic reforms, and moving away from the issue of constitutional reorganization of Bosnia and Herzegovina, as well as the non-insistence on the implementation of constitutional changes in Sejdić-Finci, Zornić and Pilav, above all, the decisions of the Constitutional Court of Bosnia and Herzegovina in the case of Božo Ljubić resulted in the emergence of the largest post-Dayton crisis in BiH that could experience its epilogue in the impossibility of implementing the election results in October 2018. An additional obstacle in the process of constitutional changes will be to a large extent introduced by the mechanism of coordination, although presented as progress of Bosnia and Herzegovina on the road to negotiations with EU partners (because BiH will finally speak with one voice?!) in its essence is an additional veto mechanism that will bring Bosnia and Herzegovina down on its path of integration within the European Union, but also on the NATO path.

The necessity of constitutional changes in Bosnia and Herzegovina is especially emphasized in the above judgments of the European Court of Human Rights and further confirmed in the preliminary report of the European Commission of April 2018. On the necessity of amending the Constitution of BiH, the Venice Commission wrote in its report already in 2005, stating that certain provisions of the BiH Constitution must be changed in order to define the key characteristics of a vital national interest, as well as the need to redefine the entity veto that essentially favors only one entity in Bosnia and Herzegovina. Also, in the same report, the Venice Commission states that the current administrative structure of the state only deepens ethnic divisions and, therefore, it is imperative that in due time BiH moves from an ethnic-based principle to citizen-based. Furthermore, as one of the key conclusions of the Commission, the need for the creation of a new Constitution of BiH, which will not be based on the any form of current constitutions in BiH (Constitution of BiH, FBiH, RS) because they have been by-product of the conflict/war aiming at establishment of peace in Bosnia and Herzegovina, but the Constitution, which will be an expression of the will of the citizens of Bosnia and Herzegovina.

Basic Principles and Effects of the Reform Agenda

After the May Forum /Conference in 2014 (organized by the EUD / EUSR in cooperation with the World Bank, the European Bank for Reconstruction and Development, the International Monetary Fund and the US Embassy in BiH with the participation of local authorities, non-governmental organizations and the academic community) called the Compact for Growth and Jobs, the framework and set of socio-economic reforms needed for the development of BiH society has been defined and had experienced its concretization through the creation and adoption of the Reform Agenda. In this way, the Reform Agenda (created by the EU, the World Bank, the IMF, the Council of Ministers of BiH and the governments of both BiH Entities) has become a key document and a guide to political action in Bosnia and Herzegovina in the period 2015-2018. Although the Reform Agenda is nominally covering a period of four years in its activities, its adoption by the end of 2015, and the fact that the 2018 is election year in BiH essentially meant that the authorities of Bosnia and Herzegovina would have only two years to implement it. The Reform Agenda is a set of measures that all levels of government are committed to implement, as well as representatives of key political parties in Bosnia and Herzegovina, which defined six key reform areas with the goal of the overall improvement of Bosnia and Herzegovina in terms of economic, social and political progress, namely : Public finances, taxation and fiscal sustainability; Business climate and competitiveness; Labor market; Reform of social security and pensions; Rule of law and good governance; and Public Administration Reform.

By the Action plans for implementation of the Reform Agenda the Council of Ministers of BiH and the Government of both BiH’s entities in accordance with their competences, have determined concrete activities in the reform areas. Thus, the Council of Ministers of BiH defined the activities (33 of them) in four key areas within their competence, while activities in the field of labor market, as well as the reform of social protection and pensions, were not included in the activities of VMBiH. The FBiH Government, as well as the RS Government, defined their activities in all six reform areas with a difference in the number of activities in certain areas, so that the FBiH committed itself to 61 specific activities, while RS committed itself to 78 activities. Most of the activities at all levels of government were planned for 2016, however, mainly activities started in 2016, while their realization took place in 2017.

So far, the state institutions of Bosnia and Herzegovina have completed a total of 21 activities in four areas or 63% of the planned activities from the Reform Agenda under the competence of the Council of Ministers of BiH, which is visible from the below table.

R.br. Oblast reformske agende Vijeće ministara BiH
Broj aktivnosti Provedene % U proceduri Nije usvojeno
1 Javne finansije,
oporezivanje i fiskalna održivost
9 4 44 % 3 2
2 Poslovna klima i konkurentnost 4 3 75% 1 0
3 Tržište rada - - - - -
4 Reforma socijalne zaštite i penzija - - - - -
5 Vladavina prava i dobro upravljanje 16 12 75% 4 0
6 Reforma javne uprave 4 2 50% 1 1
UKUPNO 33 21 63% 9 3

Entity levels of government in Bosnia and Herzegovina have implemented their activities from the Reform Agenda in all six areas, and so far have implemented 46% (Government of the FBiH) and 70% (RS government) of them. A detailed overview of the implementation activities by field is given in the table below.

R.br. Oblast reformske agende Vlada FBiH Vlada RS
Broj aktivnosti Provedene % U proceduri Nije usvojeno Broj aktivnosti Provedene % U proceduri Nije usvojeno
1 Javne finansije,
oporezivanje i fiskalna održivost
19 12 63% 4 3 22 16 72% 4 2
2 Poslovna klima i konkurentnost 21 8 38% 5 8 27 16 59% 10 1
3 Tržište rada 7 2 28% 1 4 5 3 60% 1 1
4 Reforma socijalne zaštite i penzija 3 2 66% 1 0 4 4 100% 0 0
5 Vladavina prava i dobro upravljanje 3 1 33% 2 0 13 12 92% 1 0
6 Reforma javne uprave 8 3 37% 1 5 7 4 57% 1 2
UKUPNO 61 28 46% 14 20 78 55 70% 17 6

Although the significant progress has been made in the implementation of the Reform Agenda for the period 2016-2017, the delay in the implementation of the Reform Agenda was created in the second part of 2017 and early 2018. The delay in the realization of the activities from the Reform Agenda was largely aroused or coincided with the emergence of a crisis in the functioning of the government at all levels, which was largely caused by the return of the issue of the Election Law in Bosnia and Herzegovina to the political “agenda”. Therefore, the progress achieved by Bosnia and Herzegovina in the implementation of the Reform Agenda has been significantly reduced and amounted only 12%, which is best illustrated in the table below.

R.br. Oblast reformske agende
Vijeće ministara BiH Vlada FBiH Vlada RS
2017 2018 Napredak 2017 2018 Napredak 2017 2018 Napredak
Provedeno % Provedeno % Razlika % Provedeno % Provedeno % Razlika % Provedeno % Provedeno % Razlika %
1 Javne finansije,
oporezivanje i fiskalna održivost
3 33% 4 44 % 1 11% 11 58% 12 63% 1 5% 15 68% 16 72% 1 4%
2 Poslovna klima i konkurentnost 2 50% 3 75% 1 25% 5 23% 8 38% 3 15% 12 44% 16 59% 4 15%
3 Tržište rada - - - - - - 2 28% 2 28% 0 0% 3 60% 3 60% 0 0%
4 Reforma socijalne zaštite i penzija - - - - - - 1 33% 2 66% 1 33% 1 25% 4 100% 3 75%
5 Vladavina prava i dobro upravljanje 10 63% 12 75% 2 12% 1 33% 1 33% 0 0% 9 69% 12 92% 3 23%
6 Reforma javne uprave 2 50% 2 50% 0 0% 2 25% 3 37% 1 12% 4 57% 4 57% 0 0%
UKUPNO 17 52% 21 63% 4 11% 22 36% 28 46% 6 10% 44 56% 55 70% 11 14%

Furthermore, the European Commission's Progress Report of Bosnia and Herzegovina in 2018 in the context of the implementation of the Reform Agenda's activities and measures, as well as the re-focusing of the European Union's focus on Bosnia and Herzegovina's integration, cited three key criteria: political, economic and legislative. Within the political criteria, the EC emphasizes the importance of amending the Election Law of Bosnia and Herzegovina, the issue of elections in Mostar, the implementation of judgments of the European Court of Human Rights and the fight against corruption. Regarding the implementation of the Reform Agenda measures, the EC report states that throughout the entire year 2017 the overall slowing down of the implementation of the same was underway, for which the ruling political parties are largely responsible (in particular in the FBiH entity) without specifying which political parties in particular. In relation to the economic criteria, Bosnia and Herzegovina has made some positive developments, but one of the key problems in this regard still remains fragmented public administration. Regarding legislation, Bosnia and Herzegovina is at an early stage of capacity building compared to EU market.

Disclaimer: The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the official policy or position of the Balkan Studies Centre (BSC).

* Originally written in Bosnian language within the project "Bosna i Hercegovina i Berlinski proces: Analiza stanja ključnih procesa u BiH pred Londonsku konferenciju 2018" [Bosnia and Herzegovina and the Berlin Process: Analysis of Key Processes in BiH prior to the London Conference in 2018], Balkan Studies Center (BSC).