EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
o p i n i o
n
on the draft amendments
to the constitution
of bosnia and herzegovina
Sent as a preliminary Opinion
to the authorities of Bosnia and Herzegovina
on 7 April 2006 and
endorsed by the Commission
at its 67th plenary
session
(Venice, 10 June 2006)
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 2006 the Chairman of the Presidency of Bosnia and Herzegovina, Mr Sulejman Tihić, asked the Venice Commission 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 Herzegovina on 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 Venice Commission “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 Herzegovina and the Entities;
·
on the Parliamentary Assembly;
·
on the Presidency;
·
on the Council of Ministers.
3. Following
its submission to the Venice Commission, 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 document
CDL-AD(2006)004.
THE
CONSTITUTIONAL REFORM PROCESS IN BOSNIA AND HERZEGOVINA
6. The present
Constitution of Bosnia and Herzegovina was adopted as Annex IV of the 1995
General Framework Agreement for Peace in Bosnia and Herzegovina, the Dayton
Agreement. Its main 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 Venice Commission 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 Herzegovina closer 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 Venice Commission 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 Venice Commission 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 Venice Commission. 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 Opinion on 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 Court which 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 Venice Commission 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 Venice Commission 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 Bosnia wish 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 Bosnia is 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 Herzegovina aims 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 Court has 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 Court with a large number of complaints, thereby threatening the efficiency
and credibility of this body.
a) Other
constitutions providing for individual access to the Constitutional Court
require 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 that the 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 grants additional 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 Venice Commission 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 Europe that 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 Europe that BiH is capable of overcoming old divisions in the interest
of European integration should not be missed.
