How to Make Constitutional Rights Actual Rights

Idle Medieval thinkers busied themselves with debating the issue of how many angels could dance on the point of a needle. Several centuries later, political leaders in Bosnia and Herzegovina are also trying to resolve a major issue -- how to make the Serbs, the Croats and the Bosniaks constituent nations in the whole of Bosnia while not changing the existing situation where some of them are constituent in one entity, and considered ethnic minorities in the other.

AIM Sarajevo, February 17, 2002

The Serbs, Croats and Bosniaks are the constituent nations of Bosnia and Herzegovina. At least this is what the preamble of the Bosnian Constitution, passed in December 1995, says. The constitutions of the two entities, however, say something else: in Republika Srpska the Serbs are the constituent people, while the Bosniaks and the Croats have that status in the Muslim-Croat Federation. Over the past six years, a paradoxical situation has existed: each citizen of Bosnia could exercise without hindrance his or her basic rights -- the right to vote, hold office, use his/her language and script, and have his/her "vital national interests" institutionally protected - in only one-half of the state. By crossing the entity boundary line he/she was immediately transformed into a member of a minority group, whose rights weren't given due respect.

This was a consequence of the fact that the entity constitutions were passed before the constitution of Bosnia. True, the entities were obliged to harmonize their constitutions with the Bosnian constitution within six months, and this deadline has been extended indefinitely, it seems.

Meanwhile, politicians were interpreting the constituency of the nations in various ways. In Republika Srpska they believed that the preamble was all right, but that it does not mean that Bosnianks and Croats in that entity should be recognized as such and given all the ensuing rights. To demonstrate their adherence to principles they took it for granted that Serbs in the Muslim-Croat federation do not need such a status. Following that logic, no one was in violation of the constitution -- the Serbs are constituent in one-half of Bosnia, and the Croats and Bosniaks in the other, which makes them constituent nations in Bosnia as a whole, which is what the Bosnian constitution says.

The situation in the Muslim-Croat federation is somewhat different. Until two years ago, the then ruling Croatian Democratic Union had practically the same aforementioned views. They disregarded Croats or others who wanted to return to their homes in Republika Srpska and frightened their voters by telling them that it was possible that the Cyrillic script could return to "Croatian schools." Both times the entity's assembly was asked to debate designating the Serbs as a constituent nation, Croatian Democratic Union representatives either voted against or were absent, and the proposal would not pass. Later on, however, the Croatian Democratic Union began speaking in favor of the Serbs' constituency, which to the Serb Democratic Party came as an unpleasant surprise.

The most vocal advocate of implementation of the preamble stipulating the constituency of all three peoples was, besides non-government organizations, the opposition, that is, the Social Democratic Party. It was in principle supported by the then ruling Party of Democratic Action, as well as the Party for Bosnia, but the issue always stalled whenever the question of the constituency of the Bosniaks in Republika Srpska was brought up. Since the answer was always the same -- nothing -- the status quo did not change in either entity.

This let's-interpret-the-preamble game played for years by local jurists and politicians ended in July 2000, when the Constitutional Court of Bosnia ruled that all citizens are constituent in the whole of Bosnia, and that the entities are obliged to harmonize their constitutions with this decision. The ruling was passed by majority vote, and the votes of foreign judges were decisive.

Since the entity assemblies showed little enthusiasm in enforcing the ruling, the international community's high representative in Bosnia formed last autumn multiethnic commissions in both entities in charge of preparing amendments to this end. The job was partly done, but it snagged on two key issues. Are vital national interests to be protected by the Houses of Nations in the entity assemblies or by special commissions, and will the national key be based on the 1991 census or the current situation.

Politicians in the Muslim-Croat federation believe that the best way to protect vital national interests is by forming a House of Nations, which already exists in this entity. It's ethnic structure, however, has to be changed to include Serb representatives. However, politicians in the other entity won't hear of a House of Nations, a commission being the most they are willing to consent to. There is a big difference, because a House could prevent the passage of legislation, whereas a commission has far less authority.

There is another, more pragmatic reason why many want a House of Nations formed in Republika Srpska. Promoters of a strong Bosnian state, with central institutions that operate normally would obtain a powerful weapon. The Serb Democratic Party have become extremely skillful in obstructing Bosnia's joint institutions. If Republika Srpska formed a House of Nations, this party would get a taste of what it means to have your bills blocked by "others," and political bargaining between the state and the entities would expand.

As far as ethnic makeup is concerned, the commissions in the two entities have diametrically opposed views. The federation commission wants the national key based on the results of the 1991 census, whereas the RS commission prefers the current situation. The former says that by accepting the current situation, the results of ethnic cleansing would be accepted, because migrations were not caused by normal conditions but by brutal force, and the latter, of course, opposes the using of the 1991 census data, claiming that this would mean the end of Republika Srpska.

Since the stances of the two commissions are so irreconcilable, the question was brought up whether the two solutions have to be identical. They have, say federation representatives. They don't, respond RS representatives. Politicians and the public in the federation silently hoped that the high representative would resolve the stalemate by decree, as was the case many times in the past. Judging by his statements so far, however, he will not interfere and it will be up to local politicians to deal with the matter. That the matter has been left to them was shown by meetings between leaders of the eight strongest parties from both entities, which until recently was inconceivable. The first meeting between the Social Democratic Party, the Serb Democratic Party, the Party of Democratic Action, the New Croatian Initiative and the Party of Democratic Prosperity was held in Republika Srpska, and the next several days later in Sarajevo. No compromise was reached. Other meetings are expected, but time is running out. The entity constitutions are supposed to be changed by mid March, because Bosnian general elections are scheduled for Oct. 5, and electoral legislation changed before that.

A political compromise must be made, and politicians will then have to convince their voters that that was the proper thing to do. If they fail, the will lose the coming elections and be treated as traitors, which will be difficult to get rid of. The Serb Democratic Party and the Party of Democratic Prosperity will disappoint many a backer if the participation of Bosniaks and Croats in RS government is based on their numbers from 1991, and the Party of Democratic Action and the Party for Bosnia will fail in obtaining plebiscitary support if constitutional changes in Republika Srpska make the Bosniaks and Croats less constituent in RS than the Serbs are in the Muslim-Croat federation.

Tanja Ivanova

(AIM)