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Bosnia: Constitution Reform Setback

25 01 2007  With parties unable to agree about amendments, the so-called April package may be dead in the water.

By Saida Mustajbegovic in Sarajevo (Balkan Insight, 25 Jan 07)

Four months after parliamentary elections in Bosnia and Herzegovina, the future of the country's constitutional reform package remains unclear.

While some parties maintain that amendments agreed last April should be carried through, others are urging a totally fresh start.

With politicians, analysts, legal experts and the international community divided, a question mark still hangs over the country's future set-up.

That change of some sort is needed, no one seriously disputes. Brussels has said Bosnia and Herzegovina cannot realise its EU membership hopes until it has overhauled the cumbersome constitution defined in an annex to the 1995 Dayton Peace Accords.

This accord divided the country into two entities, Republika Srpska, RS, and the Federation, which is further divided into ten cantons. There is also a separate District of Brcko.

But Europe says the arrangement is not a functioning state and it wants to see the central structure strengthened at the expense of the entities, which currently operate virtually as separate countries.

At the tenth anniversary of the Dayton Accords in 2005, under immense international community pressure, Bosnian politicians signed a declaration of intent to implement constitutional reforms, vowing to complete the process by the end of March 2006.

Representatives of the eight leading parties then began work under the guidance of the US Institute for Peace, USIP, and Donald Hayes, former deputy High Representative in the country.

By April 2006, the group had made limited progress, as the parties had agreed to set up two new state-level ministries, for agriculture and technology and the environment.
The parties also agreed to concede more decision-making powers to the Council of Ministers, Bosnia and Herzegovina's chief state institution, and to improve scrutiny of human rights.

Several key issues, such as reform to both chambers of the parliament, reducing the powers of the tripartite presidency and scrapping its system of rotation remained unresolved.

However, seven of the eight biggest political parties embraced the agreed constitutional amendments, known as the April package.

Haris Silajdzic, head of the Party for Bosnia and Herzegovina, SBiH, was the only party leader to reject them, on the grounds that they did not weaken the entities as he demanded.
In October's elections, voters chose him as Bosniak representative to the country's presidency.

The amendments faced fresh setbacks in the Bosnian parliament when some members of the Croatian Democratic Union, HDZ, and the Party of Democratic Action, SDA, voted against them.
HDZ deputies who opposed the proposed changes then split from the mother party and formed a new faction, the HDZ 1990, which joined forces with the SBiH. As general elections loomed, the talks were left for the new government to continue.

The results of October's election, however, have placed an extra question mark over the April package, as some parties have changed their stance in the meantime, while others remain unclear about what they seek from constitutional changes.

The three main nationalist parties that earlier accepted the package, the SDA, the HDZ and the Serbian Democratic Party, SDS, all lost ground in the election, boosting the hand of the rejectionist SBiH and its Serb mirror image, the Alliance of Independent Social Democrats, SNSD.

Both parties ran election campaigns loaded with nationalist rhetoric, with the SBiH calling for the abolishment of the RS - and indeed both entities - and the SNSD replying with threats of a referendum on secession.

Four months on from the election, the course these parties will take remains unclear. Silajdzic of the SBiH remains adamant he will not accept the April package, while the SNSD head,
Milorad Dodik, has raised the stakes with calls for the formation of a third entity for the Bosnian Croats, dividing the Bosnian Croat parties.

The HDZ 1990, which is still siding with the SbiH, is calling for a new package. "The [April] amendments story didn't hold any water," HDZ 1990 member Vinko Zoric told Balkan Insight.
Zoric suggested that Bosnia and Herzegovina needed an entirely new constitution, not amendments to the present one.

Zoric's counterpart from the HDZ, party spokesman Miso Relota, however, maintained the April amendments ought to be upheld and any broader reorganisation of the state left to another round of talks. This might end up dividing Bosnia and Herzegovina into four federal units instead of two entities, said Relota.

The parties in the RS, meanwhile, have coordinated their views around a joint platform: yes to constitutional change but no to any reduction in the entities' powers.

The biggest change of heart has happened at the SDS, whose leadership changed after the elections when the reformist Dragan Cavic was removed and replaced with a hard liner, Mladen Bosic. He then reversed the SDS's support for the April package.

"We want the constitution to change but neither under international pressure as has been the case so far, nor the way that the SBiH wants," Bosic told Balkan Insight. He said the SDS was ready to accept a completely new constitution, provided it did not affect the authority of the entities.

Krstan Simic, a senior SNSD official, told Balkan Insight his party would not accept any weakening of the RS, either.

No comparable common stance among the parties has emerged in the Federation, where the two biggest Bosniak parties, the SBiH and SDA, formed a coalition after the elections but remain at loggerheads on the constitutional package.

The SDA remains adamant that the April package deserves support as a first step in a much-needed reform of the country's organisation. Sefik Dizdarevic, a senior SDA official, told Balkan Insight the package was part of a comprehensive reform process and should be passed in the new parliament.

On the other hand, Beriz Belkic, of the SBiH presidency, countered that a new constitution should be drafted.

After the SDA-SBiH coalition was formalised in January, the leader of the Social Democrat Party, SDP, Zlatko Lagumdzija, came forward with a fresh proposal, saying his party's support for the amendments would depend on the further course of action of the SBiH.

"We will give Silajdzic time to deliver his election campaign promise and come up with improved amendments," he said. "[But] we will support the April package if he fails in his quest."

Legal experts and political analysts mostly agree that constitutional reforms of some variety or other cannot come soon enough. But they are as divided as the politicians.

"Bosnia and Herzegovina is going through an undeclared constitutional crisis because although the present one defined by the Dayton Accords is obsolete, there is no sign of another," said Hamza Baksic, of the daily newspaper Oslobodjenje. Baksic said passing the existing amendments was the only realistic option.

But the constitutional expert Faris Vehabovic said a new set of changes to the proposed amendments would be more logical. Vehabovic also maintains that passing the constitutional reforms should be in the hands of the parties in power rather than those in opposition.

He also said it was difficult to predict whether the new government was likely to pass the April amendments, ask for a new set or seek an entirely new constitution.

Slavo Kukic, a political analyst from Mostar, said the new government was filled with old politicians whose legacy over the last 15 years had consistently proved a stumbling block to change.

With political parties and experts so divided, many hoped the international community would again take the lead role.

But statements from representatives of the EU and the US suggest the big powers are equally unclear about how Bosnia and Herzegovina should approach the issue of the April package.

Donald Hayes, whom many see as a key architect of the package, in January said the international community should take a step back after the country failed to push through the reforms last year.

He told the media it was essential that local politicians constructed and carried through the constitutional reforms without being prodded from outside.

Hayes argued that an international initiative was unlikely to produce a stable constitutional settlement in the long term.

However, Doris Pack, an influential member of the European parliament, noted that the new government lacked a majority in parliament to pass the April package.

She also said the way the package had been agreed on had been secretive and rushed and urged the international community, politicians and civil society to "seriously and in detail" discuss the issue once again.

The Office of the High Representative, OHR, the leading international body in the country, meanwhile, says it is normal for constitutional changes to be a lengthy process in any country.

The sudden resignation of the OHR Christian Schwarz-Schilling, however, means the OHR will effectively be something of a lame duck until a successor is appointed.

Chris Bennet, OHR director of communications, told Balkan Insight the international community believed parliament would back the April package.

"A new government will be formed to include two-thirds of the parties which support these amendments," said Bennet.

If none of them change their course, OHR expects the April package to be adopted by the parliament, he concluded.


Saida Mustajbegovic is a Sarajevo-based correspondent for Balkan Insight. Balkan Insight is BIRN's online publication.

This article has been produced as part of BIRN’s Bosnia Constitutional Reforms project which is financed by the Swiss Embassy in Sarajevo and the University of Sarajevo's Human Rights Center.