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Strasbourg, 7 April 2006
Opinion 375/2006
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CDL(2006)027
Or.
Engl.
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
preliminary
opinion
on the draft amendments
to the constitution
of bosnia and herzegovina
on the basis of comments
by
Mr J. HELGESEN (Member, Norway)
Mr J. JOWELL (Member, United
Kingdom)
Mr G. MALINVERNI (Member, Switzerland)
Mr J.-C. SCHOLSEM (Member, Belgium)
Mr K. TUORI (Member, Finland)
INTRODUCTION
1.
By letter dated 21 March 2006the Chairman of the Presidency of Bosnia and Herzegovina,
Mr Sulejman Tihić, asked the VeniceCommission to give an Opinion on the text of the agreement on the modalities of
the first phase of constitutional reform reached by the leaders of political
parties in Bosnia and Herzegovinaon 18 March 2006. Since the
constitutional reform has to be adopted urgently in order to make it possible
to take it into account at the parliamentary elections scheduled for October
2006, he expressed the wish to receive the Opinion of the VeniceCommission “shortly”.
2.
The said agreement on the first phase of constitutional reform is quite
comprehensive. It contains a revision of five main parts of the Constitution of
Bosnia and Herzegovina:
·
on Human Rights and Fundamental Freedoms;
·
on Responsibilities of and Relations between the
Institutions of Bosnia and Herzegovinaand the Entities;
·
on the Parliamentary Assembly;
·
on the Presidency;
·
on the Council of Ministers.
3.
Following its submission to the VeniceCommission, the text of the political agreement was redrafted in the form of
amendments to the Constitution. On 24 March 2006 the Presidency decided to submit the redrafted text to
the Parliamentary Assembly with the exception of the Amendment to Article II of
the Constitution on Human Rights which was considered as not sufficiently well
prepared. In accordance with the wishes of the Presidency, the present Opinion
examines the draft Amendments as submitted to Parliament as well as the – not
yet finalised- text on human rights.
4.
In view of the urgency of the issue and in accordance with the decision
taken by the Commission at its 66th Plenary Session on 17 to 18
March 2006, the present Preliminary Opinion was prepared under the
responsibility of the reporting members, Messrs. Helgesen (Norway), Jowell
(United Kingdom), Malinverni (Switzerland), Scholsem (Belgium) and Tuori
(Finland) and sent to the authorities of Bosnia and Herzegovina on 7 April
2006.
5.
It is recalled that the Venice Commission already provided an Opinion on
one aspect of the reform, the election of the Presidency, in March 2006 (see
documentCDL-AD(2006)004.
THE CONSTITUTIONAL REFORM PROCESS IN BOSNIA AND HERZEGOVINA
6.
The present Constitution of Bosnia and Herzegovinawas adopted as Annex IV of the 1995 General Framework Agreement for Peace in Bosnia
and Herzegovina, the Dayton Agreement. Itsmain purpose was to end the bloody conflict in the country and not to establish
a functional state.
7.
In March 2005 the Commission adopted, at the request of the
Parliamentary Assembly of the Council of Europe, its Opinion on the
Constitutional Situation in Bosnia and Herzegovina and the Powers of the High
Representative (CDL-AD(2005)004). In this Opinion the Commission concludes that
constitutional reform is indispensable and that it will have to be carried out
in several stages, with an entirely new Constitution based on a democratic
process in Bosnia and Herzegovina (hereinafter referred to as BiH) as the final
aim. As regards the first stage of constitutional reform, the Commission notes:
“102. A
central element of the first stage of constitutional reform has to be a
transfer of responsibilities from the Entities to BiH by means of amendments to
the BiH Constitution. This is an indispensable step if any progress is to be
achieved in the process of European integration of BiH. This step will be
difficult since, as with other constitutional amendments in BiH, it will have
to be based on consensus among the representatives of the three constituent
peoples. Constitutional reform cannot be imposed. Another element of the first
stage should be a streamlining of decision-making procedures within BiH,
especially with respect to the vital interest veto, and a reform of the
provisions on the composition and election of the Presidency and the House of
Peoples which seem either now or following the entry into force of Protocol No.
12 on 1 April 2005 incompatible with the ECHR. The reform of the vital interest
veto at the State level could best be carried out in parallel with similar
reforms in both Entities.”
In addition, the Commission insists on the urgency of the reform of the
Constitution of the Federation of Bosnia and Herzegovina. The agreement on
constitutional reform examined in this Opinion only relates to the Constitution
of the State.
8.
The Opinion of the Venice
Commission raised a lot of interest in Bosnia and Herzegovina. With the
assistance of a former Principal Deputy High Representative, Donald Hays, now at the US Institute for Peace, a group of
experts appointed by the main political parties started to meet to discuss
constitutional reform, taking as the point of departure the Venice Commission Opinion. The agreements reached at
expert level were further discussed by the leaders of the main political
parties and finally, on 18 March 2006, the party leaders approved the agreement on
the first phase of constitutional reform. This agreement was facilitated by the
US embassy in Sarajevo and also took into account a Venice Commission Opinion on three different
proposals to elect the Presidency of Bosnia and Herzegovina (CDL-AD(2006)004.
AMENDMENT I TO ARTICLE III OF THE CONSTITUTION ON RESPONSIBILITIES OF
AND RELATIONS BETWEEN THE INSTITUTIONS OF BIH AND THE ENTITIES
General comments
9.
In its 2005 Opinion the VeniceCommission identified the transfer of responsibilities from the Entities to the
State level as a necessary main element for the first stage of constitutional
reform. The very limited powers granted to the State level by the present
constitutional text are in no way comparable to the powers exercised by other
federal states and they are insufficient to enable Bosnia and Herzegovina to
participate in the process of further European integration.
10.
It is therefore particularly welcome that this Amendment has as its main
purpose the transfer of responsibilities to the State level. The main elements
of the reform are:
- Additions and alterations to the list of
responsibilities of BiH;
- The introduction of a new list of responsibilities shared
between State and Entities;
- A general provision giving to the State level
responsibility to take all action required for European integration.
Comments Article by Article
11.
If the purpose of the amendments deserves strong support, the drafting
of several amendments warrants some critical comment.
Art. III.1 -List of
responsibilities
12.
Four new items are added to this list:
(a) Sub-section (a) giving to the
State level responsibility for defence and security is welcome. This responsibility
was already transferred to the State level in the context of defence reform.
Defence and security rightly belong to the state level and cannot reasonably be
exercised by Entities. This amendment therefore reflects the current situation
and brings Bosnia and Herzegovinacloser to usual state practice. The meaning of the amendment could be made
clearer by adding the word “external” before security.
(b) The present sub-section (g) “International and Inter-Entity criminal law
enforcement, including relations with Interpol” becomes sub-section (h)
with a different text “Implementation of international and
inter-Entity criminal law enforcement regulations,
including relations with Interpol”. This new wording is much narrower and
therefore seems at variance with the overall aim of the constitutional reform
of granting more powers to the State level. It seems to take away from the
State level the power to regulate, leaving to it only the power to implement.
This is contrary to usual practice in federal states where often entities
implement State law but not vice versa. It also risks undermining the current
constitutional basis for existing State level legislation in the criminal law
field and on the State Investigation and Protection Agency. The Commission therefore
urges to reconsider this rephrasing.
(c) The new sub-section (i) gives
to the State level responsibility for the State Court and the BiH Prosecutor’s
office. This provides an explicit constitutional basis for existing State
institutions which seem indeed indispensable. However, the wording does not at
all define the responsibilities of these institutions and does not really fit
into a list of responsibilities but should be part of an Article defining state
institutions. A new Article VI.a immediately following the provisions on the Constitutional Court would be more appropriate in this respect.
The relationship of this sub-section with sub-section 2.(c) below which gives
to the State level a shared competence on “judiciary” should also be clarified.
(d) Finally, the proposed sub-section
(m) giving to the State level “remaining
competencies as regulated by law” is difficult to accept. It seems to open
the door for the State level to assume by ordinary law responsibility for any
matter without amending the Constitution. This is not acceptable in a federal
state and in contradiction with Art. III.3.(a) giving the residual power to the
Entities. The intention may be to refer to matters transferred in accordance
with Art. III.5 and to responsibilities resulting from other constitutional
provisions. In this case the sub-section could be replaced by “any other matter within the responsibility
of the institutions of Bosnia and Herzegovina under this Constitution”. Otherwise
this sub-section will have to be deleted.
Art. III.2 - List of shared
competencies
13.
This list would be newly introduced into the Constitution. Its heading
should be clarified to read “The
following competencies are shared between the institutions of Bosnia and Herzegovina and
the Entities.”
14.
The underlying assumption that some areas should not entirely be dealt
with either at State or Entity level but divided between both levels seems
reasonable and justified. Until now this principle is not at all reflected in
the text of the Constitution, although e.g. the responsibility for electoral
issues is indeed divided between both levels. In principle, this addition is
therefore welcome. However, in this case it is necessary to define according to
which criteria the responsibilities are divided. There are several
possibilities. For example, the State level could be responsible for
legislation and the Entities for execution. Or the role of the State level
could be limited to define general principles as framework legislation. Or the
subject matter could be divided with the State level e.g. being responsible for
some taxes and the Entities for others. As it stands, the impact of this list remains
unclear.
15.
Moreover, it would be desirable to add a supremacy clause, making it
clear that State law prevails with respect to inconsistent Entity law. The
introduction of shared competencies will also require the development of
consultation mechanisms between the State and the Entity level.
16.
Finally, sub-section (h) is inappropriate for the same reasons as
sub-section 1.(m) above and should be deleted.
Art. III.3 – Responsibilities
of the Entities
17.
The only amendment to Art. III.2 now becoming Article III.3 provides
that special parallel relationships of Entities with neighbouring States have
to be consistent with European standards. This seems appropriate although
probably of limited significance. It should be noted that the residual
competence remains with the Entities.
Art.
III.6 – Additional Responsibilities
18. The new Art. III.6.(b) makes it clear that
transfers of responsibilities from the Entities to the State cannot be revoked
without the consent of the State and the Entities. This is a welcome
clarification.
19.
The new Article III.6.(c) is of paramount importance. It gives to the
State level the responsibility to negotiate with the European Union and to adopt
and implement all measures necessary for the implementation of commitments to
the European Union. The text is broadly drafted and seems to leave no gaps. It
would enable the country to take full part in European integration and thereby
rectify a fundamental shortcoming of the present Constitution. It is true that
this provision does not allow to have a comprehensive picture of the respective
responsibilities of the State and the Entities and that a lack of clarity may
result in difficulties for its implementation. Nevertheless, under present
political circumstances in BiH, this drawback seems a small price to pay for
the important progress the provision makes possible.
Summary on competencies
20.
The Commission is aware that the present constitutional reform process
takes place under considerable time pressure. The distribution of
responsibilities between the State and the Entities remains a sensitive issue
in BiH and it seems therefore unlikely that all ambiguities in the proposed text
can be resolved quickly. The Parliamentary Assembly may therefore wish to adopt
the draft Amendment, subject to the modifications in the lists of
responsibilities proposed above (Art. III.1.(h) and (m) and Art. III.2.(h)),
and revert to the issue of distribution of competencies after the elections in
a more systematic way. The proposed Amendment leads to an overall improvement
in the distribution of responsibilities between the State and the Entities and
corresponds to a pressing need. However, it does not seem based on a systematic
reflection on the needs of the country but on a piecemeal approach. For
example, in the lists of responsibilities of the State level several matters
usually dealt with in federal states at the central level are missing such as
civil law, criminal law, labour law or maritime law.
21.
While this lack of a comprehensive approach is acceptable for a first
step, it does not provide a long-term solution. It is in the interest not only
of the State level but also of the Entities to have a stable catalogue of
competencies, providing a basis for long-term planning and policies. The
Commission therefore recommends to undertake, as part of a second phase of
constitutional reform after the elections, a systematic reflection on a
coherent and stable distribution of competencies between both levels.
AMENDMENT II TO ARTICLE IV OF THE CONSTITUTION ON THE PARLIAMENTARY
ASSEMBLY
General comments
22.
The main aim of the Amendment is to move from a bicameralism with two
equal chambers to a new system where the House of Peoples (hereinafter referred
to as HoP) would have only limited powers with a focus on the vital national interests
veto. The new structure of the Article, systematically putting the House of
Representatives (hereinafter referred to as HoR) first, reflects this aim. The
reform would be a step in the direction of the VeniceCommission recommendation to abolish the HoP and to streamline decision-making
within the State institutions.
Art. IV.2. on Structure and
Election of the Parliamentary Assembly
23.
Sub-section (b) would increase the number of members of the HoR from 42
to 87. The previous number was indeed very low for a national parliament of a
state of the size of BiH. The increased responsibilities of the State level
would seem to justify an increase in the membership of this House. It should also
be noted that the amendment introduces three set-aside seats for Others.
24.
Sub-section (d) would increase the number of members of the HoP from 15
to 21. The justification of the increase in the membership of this House is
less apparent since its powers are greatly reduced. Nevertheless, this is an
issue entirely within the discretion of the national authorities. If they feel
that this increase is required to ensure that the House adequately represents
the political spectrum, this step seems justifiable.
25.
More problematic is the circumstance that membership in this House
remains limited under sub-section (d) to people belonging to one of the three
constituent peoples. In its Opinion the VeniceCommission noted that the previous composition of this House along similar lines
seemed to contradict Art. 14 of the ECHR in conjunction with Article 3 of the
First Protocol to the ECHR.
26.
Following the reform the House of Peoples would however no longer be a
full legislative chamber but a body dealing mainly with the vital national interests
veto. It seems therefore questionable
whether Article 3 of the First Protocol and thereby Article 14 of the ECHR would
still be applicable. The problem of the compatibility of this provision with
Protocol Nr. 12 to the ECHR remains however. In the absence of any case-law on
this Protocol, it can be interpreted only with prudence. Paragraph 18 of the
Explanatory Report to the Protocol reads as follows:
“18. The notion of discrimination has been
interpreted consistently by the European Court of Human Rights in its case-law
concerning Article 14 of the Convention. In particular, this case-law has made
clear that not every distinction or difference of treatment amounts to
discrimination. As the Court has stated, for example, in the judgment in the case
of Abdulaziz, Cabales and Balkandali v. the United Kingdom: "a difference
of treatment is discriminatory if it ‘has no objective and reasonable
justification’, that is, if it does not pursue a ‘legitimate aim’ or if there
is not a ‘reasonable relationship of proportionality between the means employed
and the aim sought to be realised’" (judgment of 28 May 1985, Series A,
No. 94, paragraph 72). ….”
27.
In the present case the legitimate aim could be seen in the main role of
the House as a body in which the vital national interests veto is exercised.
The BiH Constitution reserves the right to exercise this veto to the three
constituent peoples and does not give it to the Others. From that perspective
it would not seem required to include “Others” in the composition of this
House. The other responsibilities of the House, to participate in the election
of the Presidency and to approve constitutional amendments- though not beyond
criticism-, do not lead to a different result. They show that the function of
the HoP is to be a corrective mechanism, ensuring that the application of the
democratic principle reflected in the composition of the HoR does not disturb
the balance among the three constituent peoples. The need for such a mechanism
seems still to be felt in BiH. In that case it seems possible to regard this
need as a legitimate aim justifying an unequal treatment of Others in respect
to representation in the HoP.
Article IV.3 on Term and Eligibility of Members
28.
According to sub-section (c) members of the Parliamentary Assembly may
not hold any other elected public office or position in accordance with the Law
on the Conflict of Interests. This text seems to constitutionalise the Law on
the Conflict of Interests. It would be preferable to either regulate the
incompatibilities directly in the Constitution or to put that the scope of the
incompatibility is to be regulated by law.
Article IV.5 on President and Vice Presidents
of the Houses of the Parliamentary Assembly
29.
It is the understanding of the Venice Commission that the second
sentence of sub-section (a) as well as sub-section (f) may in no case be construed
as prohibiting the election of a person belonging to the Others to one of these
position. This would be an inadmissible discrimination. The Venice Commission
understands these, and other similar provisions thereafter, as only precluding
the election of two persons from the same constituent people to two such
positions, based on the legitimate aim of avoiding a dominant position of a
constituent people.
30.
With respect to sub-section (f) a mechanism will have to be found to
resolve cases when two or more persons belonging to the same constituent people
are actually elected to these positions. The elections to the office of Prime
Minister are the latest to take place and members of all groups should be able
to be candidates for this most powerful position in the state. It could be
provided that the President of a House has to resign if a person belonging to
the same group is elected Prime Minister and that nobody from the same group as
the President of the HoR can be candidate for the HoP.
Article IV.6 on sessions of the Houses of the
Parliamentary Assembly and session of the Parliamentary Assembly
31.
Under the new constitutional arrangements it seems likely that there will
more often be a need for an extraordinary session of the HoR than of the HoP.
It would therefore seem preferable to provide in sub-section (c) for
extraordinary sessions of each House and not of the Parliamentary Assembly as a
whole.
Article IV. 7 on competencies of the House of
Representatives
32.
The list of responsibilities of the HoR seems comprehensive and
appropriate. However, the double reference to international obligations in
sub-sections (b).iii. and (b).iv. seems redundant.
Article IV.8 on competencies of
the House of Peoples
33.
Sub-section (b) would give to the HoP the (co-)responsibility to adopt
constitutional amendments. Since constitutional amendments also appear in the
list of matters subject to the vital national interest veto, the HoP would have
a double role in this respect. One could therefore consider deleting this
responsibility.
Article IV.9 on legislative procedure
34.
In sub-section (a) it is unclear how a member of the HoP could introduce
legislation in the HoR. This power should be reserved to the CoM and members of
the HoR.
35.
To avoid a contradiction with Art. X, the voting provision in
sub-section (d) should be qualified “Unless
otherwise provided for by this Constitution…” This provision, as well as
sub-section (b) and (c) go beyond legislative procedure and should be moved to
section 4.
36.
Sub-section (e) providing for a veto by two-thirds of the members of the
HoR from one Entity was retained from the present constitutional text. Its
continued existence should therefore not be a motive for opposing
constitutional reform. Moreover, from the international perspective this veto
based on the need to have minimum support throughout the territory is less
problematic than the vital national interest veto. Having regard to the
proposed wording on the vital national interest veto, this Entity veto seems largely
redundant since in such cases a vital national interest veto would be likely to
occur in the HoP anyway. The abrogation of this provision could therefore be
considered. If it were politically impossible to abrogate it , it would be
logical to limit it to cases where specific Entity interests are concerned. In
particular this veto could be limited to the area of responsibilities shared
between State level and Entities. For the reasons stated above, this provision
does however not seem to be of major practical importance.
37.
Sub-section (f) provides for decisions in the HoP to be taken by simple
majority, sub-section 10.(e) below requires a majority of delegates, Article
V.2.(e) a “majority vote” of the caucus.
38.
It should be noted that sub-sections (h) and (i) give to one caucus of
the HoP and not to the House as such the power to amend laws. See also the
remark on Art. IV.10.(e) below.
Article IV.10 on the vital national interests
veto
39.
The new sub-section (a) seems to enhance the status of the vital
national interests veto into a kind of natural inalienable human right. This is
entirely inconsistent with the aim of reducing the scope of this veto which
should be considered as an exceptional institutional arrangement justified by
the continued lack of trust among the three constituent peoples and not as a
natural right. This provision should be scrapped.
40.
Sub-section (c) lacks normative content and does not add anything to
sub-section (b). It could be deleted as redundant.
41.
The Venice Commission recommended in its March 2005 Opinion
to define the scope of application of the vital national interests veto clearly
and narrowly to avoid excessive blocking of decision-making. It also considered
the definition of vital national interests in the Entity Constitutions as too
broad. Sub-section (d) now introduces a definition of vital national interests,
based on the present definition in the Entity Constitutions. Some of the items
on this list seem difficult to interpret. As in the Entity Constitutions the
purpose of defining vital interests by providing a list of subject matters
regarded as falling under this notion is undermined by a blanket provision in
subsection xii., giving to a two-thirds majority of any caucus the right to
declare anything a vital national interest. If it is politically not possible
to delete sub-section xii, which opens the door to the arbitrary invocation of
vital national interests, it may be preferable not to define vital national
interests at all but to leave this definition to the Constitutional Court
42.
Under the procedure as drafted in sub-section (e), there seems to be no
role for the HoP as such and no discussion within this House, only within the
caucuses. The HoP therefore has scant existence as a chamber of its own. The
reference to a “previous item” in
(e).i. is unclear.
AMENDMENT III AMENDING ARTICLE V OF THE CONSTITUTION ON THE PRESIDENCY
General Comments on Amendments
III and IV
43.
The main aim of the Amendments is to strengthen the powers of the
Council of Ministers and increase its efficiency and reduce the role of the
Presidency. This is entirely in line with the Opinion of the VeniceCommission. In addition, the Commission would have preferred having a single
President instead of a collective Presidency. This does however not seem
politically possible at the moment. Nevertheless Amendment III takes a first step
in this direction.
Comments
article by article
Article
V. Opening section
44. While maintaining the existence of a
collective Presidency of three members, this provision reflects a positive
development by distinguishing one President and two Vice-Presidents. It should
be noted that the subsequent sections give far more powers to the President
than to the Presidency. It would therefore be more consistent to start this
section by stating “BiH has a President
and two Vice-Presidents forming together the Presidency. The President of BiH
is at the same time the President of the Presidency of BiH” With respect to
the last sentence of the section, the Venice Commission understands it as not
excluding the possibility to elect Others to the Presidency (see paragraph 29
above). This applies also to Article V.2.(d) below.
Article V.1
45.
The obligation to work co-operatively with other institutions should not
concern the President alone but President and Presidency.
Article V.2 on election and
the term of office
46.
The Venice Commission adopted an Opinionon the three alternative proposals for electing the Presidency at its last
session (CDL-AD(2006)004). It would serve no purpose to re-open this discussion
at the present moment. The absence of a dead-lock breaking mechanism if the HoR
refuses to confirm the proposal of the HoP is however a concern.
Article V.4 on duties and
powers of the President
47.
The emphasis on the powers of the President (as opposed to the
Presidency) is welcome.
48.
In sub-section (a).iii. it would be more in line with the responsibility
of the Council of Ministers to conduct foreign policy to put “shall,
upon the proposal of the Council of Ministers, appoint and dismiss
ambassadors and envoys, in accordance with State law.”
49.
The wording of sub-section (a).ix. seems misleading and should be
harmonised with Art.V.4.2.(a). Sub-section xi. seems problematic since it would
enable the Parliamentary Assembly to give new duties to the President.
50.
The wording of sub-section (b).i should be reviewed. “Regulating”
defence is not very clear but would seem of normative character and not
appropriate for the Presidency. A better wording could be, inspired by the Law
on Defence “Exercising supreme command
and control of the armed forces in accordance with the law and perform other
duties in the area of defence as provided for by law”.
51.
Sub-section (b).ii would seem to contradict Art. VI.1.(a) on the
selection of judges of the Constitutional Courtwhich is not a provision to be amended. It can only be reconciled with this
provision if this prerogative remains formal and the Presidency is bound to
appoint the persons selected in accordance with Art. VI.1.(a). With this clarification,
this competence seems welcome by involving the State level in an appointment
procedure for important state positions hitherto reserved to the Entities and
an international body. If, however, the intention were to also amend Art. VI in
this respect, it seems questionable whether the choice of constitutional judges
should be left entirely to the Presidency.
52.
In section (c) the terminology law/ legislation should be harmonised.
53.
The requirement in sub-section (c).iii. that the Parliamentary Assembly
as a collegiate body with two Houses should provide a written reply seems cumbersome. A more meaningful
procedure would be:
- The President sends the text with his explanation back
to the HoR;
- The HoR re-examines the text and votes again (the
majority of the members as opposed to the majority of those present could
be required for such a vote);
- If the HoR adopts a different text, this text is
sent to the HoP, otherwise directly back to the President;
- The President then has to sign the text.
Article
V.5 on disability of the President/ Vice Presidents in performing duties
54. Provisions should be added
- On the death of a member of the Presidency;
- On temporary incapacity of a Vice-President
(required because of sub-section 4.(b).
Article V.6 on impeachment of
the President/ Vice President
55.
Sub-section (b) provides for an impeachment of a President or
Vice-President also for “incompetence”. This mixes in an inappropriate way
legal and political responsibility. The purpose of impeachment procedures is to
provide a solution when a President commits serious violations of the law. It
should not apply in cases when parliamentarians consider the President
incompetent.
56.
In sub-section (c) the usual terminology (House of Representatives, not
House of Representatives of the Parliamentary Assembly of BiH) should be used.
Moreover, it is difficult to envisage that the House as such introduces this
motion. One third of its members would be more appropriate.
57.
The requirement of approval by the majority of the members of the people
from which the member of the Presidency comes seems totally inappropriate.
First of all, it would seem based on the assumption that each member of the
Presidency has to come from a constituent people. Secondly, it introduces into
the HoR as the body representing all citizens of BiH an inappropriate ethnic
division apparent nowhere else in the Constitution.
58.
If it is considered necessary to protect members of the Presidency
against impeachment by a parliamentary majority composed of members from other
ethnic groups, it would be less objectionable and more in line with the overall
approach chosen for the constitutional reform to require for the impeachment
the consent of the majority of the caucus in the HoP having nominated this
member. Sub-section (a) would have to be amended accordingly.
Article V.8 on succession
59.
It should be clarified that the caucus in the HoP having nominated the
member of the Presidency has the right to nominate the successor.
Article V.9 on criminal
liability of the President/Vice-Presidents
60.
Sub-section (a) exempts the President and Vice-Presidents from criminal
liability for official acts. This exemption should be extended to civil
liability by either deleting the word “criminal”
or adding the word “civil”.
AMENDMENT IV TO ARTICLE V.4 OF THE
CONSTITUTION ON THE COUNCIL OF MINISTERS
Article
V.4bis.Opening section
61.
The aim of the reform is clearly reflected in the first section
providing that “The Council of Ministers
is the institution of executive authority for the State of Bosnia and Herzegovina.” It is clearly stated that the Council of
Ministers (hereinafter referred to as CoM) is accountable and responsible to
the Parliamentary Assembly (and not to the Presidency). This is welcome although
it would be more correct to speak of responsibility to the HoR since there is
no link (and should be no link) with the HoP. The President of the CoM is now
also called Prime Minister.
Article V.4bis.1 on election
and mandate
62.
Sub-section (a) provides for the election of the CoM at the beginning of
each new term of parliament. There should however also be a provision on the
election of a new CoM following a vote of no confidence or the resignation of
the CoM.
63.
The Venice Commission understands sub-section (e) as not excluding the
election of a person belonging to the Others (cf. paragraph 29 above).
Article V.4bis.2 on election
of the President of the Council of Ministers
64.
In this section it should be clarified whether there are not some
decisions requiring a majority of the members of the HoR. The general rule in Art.
IV.9.(d) is the majority of those present and voting. It could be considered to
require the majority of the full membership of the HoR in the first two
ballots. For systematic reasons, a reference to the dissolution of the
Parliamentary Assembly by the President if the third ballot fails (cf. Art.
IV.11.(d)) should be made.
Article
V.4bis.3 on election of Ministers
65. Sub-section (b) seems superfluous, raises
problems and should be deleted. It is obvious that the list of Ministers of any
coalition government is agreed in talks with the political parties forming the
coalition because otherwise the slate of ministers will not be approved by
parliament. This should however be left to the political process and not be the
subject of a constitutional rule. Otherwise the process gets excessively rigid
and unnecessary issues (who decides who is a qualified candidate?) arise.
66.
In sub-section (c) it could be considered whether to require the
majority of the members for the first ballot.
Article V.4bis.4 on term of
office
67.
There is no rule concerning the term of office of individual ministers
(as opposed to the CoM as a whole).
68.
The vote of no confidence in the Council of Ministers and the
resignation of the Prime Minister entailing the resignation of the entire CoM
should be regulated in the Constitution. These are matters which should not be
left to the law.
Article V.4bis.5 on
competencies and Article V.4bis.6 on powers and duties of the President of the
Council of Ministers/the Prime Minister and Ministers
69.
The list of powers of the CoM in Art. V.4bis.5 reflects the new role of
the CoM as the main executive organ of BiH. In sub-section (c) a reference to
the powers of the Presidency in defence matters should be added to avoid
contradictions. Art. VIII.1 of the Constitution has to be harmonised with
sub-section 5.(g).
70.
There are a number of references to normative and other acts:
- Sub-section 5.h refers to decrees and regulations
of the Council of Ministers;
- Sub-section 6.1.(d) enables the Prime Minister to
suspend decrees and regulations issued by Ministers;
- Sub-section 6.2.(b).1 refers to “laws, regulations
and acts of the CoM;
- Sub-section 6.2.(b).4 refers to regulations of
individual Ministers.
71.
First of all, the reference to “laws” of the CoM should be an obvious
mistake. Laws can only be adopted by the Parliamentary Assembly. Otherwise it
is not clear whether the system established is clear and coherent. It would be
advisable to define different notions such as “decrees”, “regulations” or
“acts” in the Constitution although this may be left to the next stage of
constitutional reform. In order to ensure the coherence of the CoM, it could be
envisaged to require for all normative acts the signature of the competent
minister and the countersignature of the Prime Minister.
Article V.4bis.7 on additional
provisions
72.
It seems appropriate to leave the list of Ministries and the decision-making
within the CoM to the law. In particular, the Commission strongly welcomes the
fact that in this way it has been possible, contrary to some earlier drafts, to
avoid the introduction into the text of the Constitution of ethnic rules on the
composition of and decision-making in the CoM.
73.
Other issues are however too crucial for the relations between the State
organs to be left to ordinary legislation. This concerns in particular the conditions
under which a vote of no confidence may be exercised within the HoR but also
the resignation and recall of the CoM. There is also a need to amend Article
VIII of the Constitution and include e.g. rules on the audit of expenditure.
This latter issue may however also be tackled in the second phase of
constitutional reform.
Summary on Amendments II to IV on
the State organs
74.
Taken together, the amendments on the State organs constitute an
important step forward. Decision-making becomes far more efficient, although
the Commission would urge to reconsider some parts of the vital national
interests veto, and provisions which directly discriminate are removed. BiH
would become a parliamentary democracy, the form of government most appropriate
in a complex multi-ethnic state.
DRAFT AMENDMENT TO ARTICLE II OF THE CONSTITUTION ON HUMAN RIGHTS AND
FUNDAMENTAL FREEDOMS
General comments
75.
The political agreement originally submitted to the VeniceCommission also contained a new Article II of the Constitution on Human Rights.
This text was however not forwarded by the Presidency to the Parliamentary
Assembly since there were doubts whether the draft was indeed a sound basis for
constitutional reform in this area. The BiH authorities nevertheless expressed
the wish to receive comments from the VeniceCommission also on this draft Amendment in order to be able to prepare an
improved version.
76.
From the legal point of view, there seems no need to revise this Article
of the Constitution in an urgent procedure before the next general elections.
Art. II.2 of the Constitution provides for the direct application of the
European Convention of Human Rights and its Protocols and grants to it priority
over all other law. Article II.4 of the Constitution contains strong language
on non-discrimination and secures to all persons the enjoyment of the rights
provided for in 15 international agreements. In principle, this seems
sufficient to ensure a high level of human rights protection in the country.
77.
It is however understandable that the people of Bosniawish to have their own catalogue of human rights which would reflect a
consensus within the country on human rights protection. The pure enumeration
of rights as set forth in Article II.3 does not seem satisfactory in this
respect. Moreover, the Human Rights Commission provided for in Art. II.1 of the
Constitution and Annex VI to the Dayton Agreement no longer exists. It is
therefore indeed desirable to review the role of the Constitutional Court in this respect. This would however involve more
a review of Article VI than of Article II.
78.
If the wish to revise the present Article II appears therefore
legitimate, the revision should not lead to difficulties and discrepancies with
respect to the international commitments of the country. Only a result of high
quality would justify a revision. The result achieved hitherto however does not
seem convincing. The approach chosen raises a number of problems.
79.
The drafters have opted to include in the Constitution three
comprehensive lists of rights. As a consequence the individual rights are
drafted in general terms and restrictions and limitations do not appear in
these lists. The issues to be resolved when drafting a catalogue of human
rights are however primarily the exact scope of these rights and the extent to
which such rights can be restricted. As an example, Articles 5 and 6 of the
European Convention on Human Rights are drafted with great care defining the
scope of the rights guaranteed and possible restrictions. Such articles can be
applied by the courts far more easily.
80.
The permissible limitations appear in draft Article II.6 and this
provision is applicable to all rights guaranteed. It can therefore only establish
very general principles and not differentiate between different rights. While,
however, the right to assembly can be limited, this is not the case for the
right to life or the right not to be tortured. The problem is exacerbated by
the fact that the catalogue of rights is particularly broad and includes a
large number of economic, cultural and social rights. Limitations to such
rights, which depend to a large extent
on action by the authorities and the availability of resources, can however not
be drafted in the same way as restrictions of fundamental freedoms. Moreover,
the issue of possible derogations is not addressed at all.
81.
There are three lists of rights guaranteed: fundamental rights, civil
and political rights and economic, social and cultural rights. Fundamental
rights can however not be regarded as a separate category distinct from e.g.
civil and political rights. The distribution of rights among these lists is
also not always convincing, e.g. the right to a healthy environment should
appear as a social and not as a fundamental right and the freedom of religion
should not be regarded as a social right.
82.
The effectiveness of human rights protection depends on the remedies
available. A very broad and ambitious but vague catalogue of rights such as
foreseen in the draft gives the impression of programmatic language not really
destined to be applied by courts to concrete cases. The Venice Commission has
already stressed in other cases the need for a precise drafting of human rights
provisions. In
the draft the courts receive insufficient guidance on which to base their
decisions and they risk not being able to fulfil the expectations raised by the
broad language of the constitution. Or, on the other hand, if courts were to
take seriously e.g. their task of protecting the right to a healthy
environment, they could encroach on the prerogatives of the legislature and the
executive. In this respect the authorities could consider introducing into the
Constitution an article on the objectives of the State, which would have as the
primary function to provide guidance to the legislature. The provision that Bosniais a social State would fit into such an article, possibly as a new section
following Article I.2, and the right to a healthy environment could be replaced
by a sentence that Bosnia and Herzegovinaaims at protecting the environment for the benefit of the present and future
generations.
83.
The Commission would therefore urge the authorities of Bosnia and Herzegovina to reconsider the approach chosen
and prepare an entirely different text.
Comments article by article
84.
Since the Commission is not convinced that the draft is a good basis for
further consideration, it has limited its comments on individual sections of
this Article to some particularly important issues.
Draft Article II.1. on general
provisions
85.
In sub-section (a) the application of the principle of equality is
limited to citizens. It should be extended to all individuals as is the case in
sub-section (c) for the related principle of non-discrimination. The reference in
sub-section (b) to the protection of ethnic and collective rights in accordance
with international and European standards is problematic. The term “ethnic
rights” is not used internationally and the scope of the protection of
collective rights is disputable. Many rights which may be considered collective
can also be understood as individual rights to be exercised collectively (e.g.
the right to education in the mother tongue cannot be claimed by a single
individual but only by a certain number). There seems no need to introduce a
distinction among various categories of rights.
Draft Article II.3.(b) on
civil and political rights and freedoms
86.
A large number of the rights enumerated here have to be secured to all
individuals and not only to citizens, including in particular all rights
related to due process and fair trial.
Draft Article II.4 on rights
of national minorities
87.
It might be appropriate to provide a definition of national minority in
the text. The principle should be inserted that
special measures may be taken in favour of persons or groups of persons who are
in an unequal position in order to enable them to fully enjoy human rights
under equal terms.
Draft
Article II.5 on interpretation of rights and freedoms
88. It should be stated explicitly that
the case-law of European and international human rights protection mechanisms
should be taken into account when interpreting the respective rights.
89. Sub-section (c) seems redundant having regard
to Article X.2 of the Constitution.
Draft Article
II.6 on limitations to human rights and basic freedoms guaranteed by the
Constitution
90.
A better wording would be: “Restrictions on the rights and freedoms
provided for in this Constitution may be established only by law, in the public
interest or for the protection of the rights of others. Any restriction shall be proportionate to the
situation that has dictated it.”
Draft
Article II.7 on the Ombudsman
91. The principles of independence, impartiality
and immovability of the Ombudsman during his or her term should be included.
Draft Article II.8 on
submission of complaints to the Constitutional Court that relate to protection of
individual and collective rights
92.
It would be more logical to review Article VI of the Constitution
instead of including provisions on constitutional court procedure in Article
II. At present the Constitutional Courthas appellate jurisdiction on constitutional issues under Article VI.3.(b). If
one introduces a direct constitutional complaint procedure as foreseen, the
continued need for this procedure might be questioned.
93.
The present drafting of this draft Article appears unrealistic and risks
flooding the Constitutional Courtwith a large number of complaints, thereby threatening the efficiency and
credibility of this body.
a) Other constitutions providing
for individual access to the Constitutional Courtrequire the exhaustion of ordinary remedies before the case can be brought
before the Constitutional Court.Without such a filter, the Constitutional Court
risks being flooded with applications. This risk is exacerbated by the very
broad catalogue of rights guaranteed in the draft and the fact that access is
provided already in case of immediate danger of violation.
b) The 60 days deadline for a
decision by the Court seems unrealistic.
c) The rules on standing in
sub-section (c) also seem too generous and increase the risk of overburdening
the Court. Legal persons and associations should have the right to appeal to
the Court if their own rights are violated but not on behalf of the rights of
their members.
Summary on the draft Amendment on
human rights
94.
With respect to the proposed revision of Article II of the Constitution
on Human Rights, the Commission notes that there is no urgent need to revise
this Article. It would certainly be desirable to base human rights protection
within BiH on rights defined within the country and not on international texts.
To this end a broad discussion should take place within the country involving
civil society. The procedure chosen for preparing the present amendments, which
was required due to the urgent need to revise the Constitution before the
elections, does not appear appropriate in this respect.
95.
Moreover the text resulting from this process, which was primarily
focused on institutional issues, is not of sufficient quality to be adopted.
While some elements such as the social state clause may be moved to other parts
of the Constitution, the text as a whole should be reviewed on the basis of a
different approach, not simply enumerating rights but defining their scope and
possible restrictions. An overburdening of the Constitutional Court has also to be avoided.
96.
A complete redrafting of the text with the involvement of civil society
is impossible in a few weeks. The Commission therefore recommends to postpone
the revision of Article II of the Constitution to a second phase of
constitutional reform, taking place after the elections.
CONCLUSIONS
97.
The Venice Commission is pleased thatthe main political parties in BiH have been able to agree, sooner than expected
after the adoption of its Opinion on the constitutional situation in BiH and
the powers of the High Representative (CDL-AD(2005)004), on a constitutional
reform package. Adoption of this package before the forthcoming elections is crucial
since the reform removes the electoral provisions directly discriminating
against a large number of citizens of BiH which would have undermined the
legitimacy of the vote.
98.
Moreover, the reform addresses the issues identified as priorities for
reform by the Venice Commission. It grantsadditional powers to the State level, a step which is indispensable if BiH
wishes to take part in European integration and which brings the country closer
to the situation in other federal Stats. The reform increases the efficiency of
the State institutions by strengthening the Council of Ministers and the House
of Representatives and reducing the role of the collective Presidency and the
House of Peoples. Some of the amendments proposed should be redrafted and not
all proposals for reform go as far as the VeniceCommission may have wished. In its earlier Opinion it already noted that
constitutional reform would have to be a long-term process and that not
everything could be done immediately since there is still a lack of trust among
the ethnic groups. It will therefore be necessary to follow up this first step
and carry out further reforms in the future. One part originally foreseen as
part of the reform, the new human rights text, is in any case not ripe for
adoption and should be postponed to the next phase of reform after the
elections.
99.
Having made these qualifications, the importance of the reform, both
with respect to its practical consequences and as a signal from BiH to Europethat the country is resolved to take the steps required for European
integration, cannot be overestimated.
Politics in any democracy is based on compromise and progress may
sometimes seem slow. This is all the more true in a multi-ethnic country having
gone through a tragic conflict. It is therefore to the credit of the party
leaders in BiH that they have been able to achieve a compromise on constitutional
reform which includes difficult compromises for all sides. Adoption of this
compromise by the Parliamentary Assembly would show an increased capacity of
BiH to take its fate in its own hands. The opportunity to strengthen the powers
of the State level, to streamline decision-making and to show to Europethat BiH is capable of overcoming old divisions in the interest of European
integration should not be missed.
