Volume 9 Numbers 1/2

Winter/Spring 2000

Constitutional Watch
     A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR

Bosnia - The polls opened for Bosnia and Herzegovina's second post-Dayton round of municipal elections on April 8. They were administered by the OSCE, which subsequently declared them free and fair. Turnout was estimated at 70 percent, and there were no serious incidents. Preliminary results indicate that while the nationalist Bosnian Croat party (Croatian Democratic Union [CDU]) and the nationalist Bosnian Serb party (Serbian Democratic Party [SDP]) continue to dominate at the municipal level, the nationalist Bosnian Bosnia and Herzegovina.Muslim party (Party for Democratic Action [PDA]) suffered significant losses in major urban areas. The Social Democratic Party (SDeP), the leading Bosnian multiethnic party, took all six municipalities of Sarajevo Canton, as well as the cities of Zenica and Tuzla.

The orderliness of the elections represents a step forward for Bosnia and Herzegovina. The long-range indicators also look somewhat better than before. The growing international isolation of Slobodan Milosevic's government in Belgrade and the recent political U-turn in Croatia have created a more positive environment for political and constitutional development in Bosnia and Herzegovina. Still, given its fragile and fragmented polit-ical structure, the country has a long way to go before becoming truly viable. To date, the international commu-nity remains deeply involved in its domestic legal affairs.

The extent of this involvement was reflected in the continuing international attempts to sideline extremists. In the Republika Srpska, in late October, the OSCE refused to register two parties-the Serb Radical Party (the Bosnian branch of Vojislav Seselj's hard-line party) and the Serb Party of Krajina and Posavina-for April's local ballot. These organizations were banned because their party lists included people accused of violating the Dayton Agreement and subverting attempts at reconciliation. Among the controversial candidates were Nikola Polasen, the former president of Republika Srpska, who was removed from office by the high representative on March 5, 1999, and SRP offi-cials Ognjen Tadic and Mirko Blagojevic. On November 29, High Representative Wolfgang Petritsch used the powers granted him under the Dayton Peace Agreement to dismiss 22 officials from elected posi-tions at all government levels. These removals-the most ever imposed by international representatives- targeted hard-line politicians from the Serb, Croat, and Bosniac nationalist parties. In each case, the reasons given were fairly general, referring to an individual's refusal to implement legislation and decisions of the high representative, as well as failure to abide by court rulings, particularly in connection with the return of refugees and displaced persons to their prewar homes.

The international authorities have also tried to fill the regulatory vacuum regarding the media in the Federation, that is, the Bosniac-Croat entity. It has not proved easy, given the high stakes involved in control-ling the radio and television outlets. Nevertheless, in October, the Independent Media Commission (IMC)- created by the high representative to regulate the activities of broadcasters-finally began issuing trans-mission licenses. The internationally devised structure envisages Federation TV as having two channels, one Croat and one Bosniac, with a joint editorial structure. So far, the network has only limited programming capa- bility and is underfinanced and underequipped. It has also already seen its share of tugs-of-war: Croat dele-gates in the Federation parliament long blocked the appointment of the governing council for the new network. Finally, the high representative circumvented parliament and, on December 7, unilaterally appointed council members.

In addition to struggling to build a new system, the IMC and high representative have also encountered prob-lems jettisoning undesirable aspects of the existing system. On November 15, the IMC ordered the imme-diate closure of Erotel, the Bosnian-Croat television station, which is seen as a puppet enterprise of the Croatian government. The station had come under fire for illegally rebroadcasting Croatian Television from Zagreb into Bosnia and Herzegovina. Earlier, the high representative had warned Erotel that Croatian Television was repeatedly violating the IMC Broadcasting Code of Practice. Erotel, however, refused to stop transmitting. The closure order was finally implemented on February 17, when officials of IMC and the Office of the High Representative, protected by the NATO-led Stabilization Force, turned off the Eurotel transmitters.

Other troubles in the media flared up in Republika Srpska. On October 5, the entity's govern-ment had moved to replace Andjelko Kozomara, the chairman of the public broadcasting station, in flagrant contravention of the Law on the Radio and Television of Republika Srpska. The law reserves this right for the station's board of governors. International authorities moved quickly to squash this move.

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While foreign power brokers attempted to bring about change through some fairly forceful interventions, the public debate within Bosnia and Herzegovina's central statewide institutions was dominated by growing specu-lation over the future of the Council of Ministers. The crisis first emerged on August 14, when the Constitutional Court of Bosnia and Herzegovina struck down the consociational arrangement in the 1997 law regulating the council and gave the Parliamentary Assembly a three-month deadline to enact the neces-sary amendments. (See Bosnia and Herzegovina Update, EECR, Vol. 8, No. 4, Fall 1999.) According to Art. V.4.(a) of the Constitution, a single chairman is expected to head the council. But after the first general elections in September 1996-when it became clear that the nationalist parties could not agree on a single candidate-legislation was enacted partitioning the position of chairman among a Bosniac, a Serb, and a Croat, rotating on a weekly basis.

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In the negotiations within the Council of Ministers on the future of the institution, each ethnic group clung to its standard position. The Serb and Croat parties insisted on ethnic tripartition and rotation. The Bosniacs opposed this. The matter was passed along to Bosnia and Herzegovina's three-member pres-idency for mediation on December 20. At its December 23 session, the Serb and Croat members of the presi-dency decided to continue with a council chairmanship organized on the same principles as the presidency itself-ethnic parity among the three "constituent peoples," rotation, and consensual decision making.

Alija Izetbegovic, the Bosniac representative in the presidency, protested. He argued that this contra-vened the ruling of the Constitutional Court, and that it violated the "vital interest" of Bosnia-thus trig-gering the veto envisaged by Article V.2.(d) of the Dayton Constitution. According to this provision (used only for the second time in five years), Izetbegovic's declaration was forwarded to the Bosniac faction in parliament's upper house, the House of Peoples, which promptly approved it. On January 28, the Constitutional Court ruled that its earlier deadline for resolving the situation had passed and dissolved the Council of Ministers. On February 1, members of the presidency met again and unanimously endorsed a law, which, while essentially echoing Serb and Croat prefer-ences, reflected some Bosniac concerns. The proposed law expanded the role of central institutions of Bosnia and Herzegovina, through the formation of two new ministries (human rights and finance), but still divided the council among the three constituent peoples. It also provided for de facto rotation by limiting the chair-man's term to eight months. This feature, which would call for frequent and repeated parliamentary appoint-ments, would increase the chances of political deadlock, weaken the Council of Ministers' ability to be an effective policymaker, and thus concentrate more power in the hands of the presidency.

The ruling parties' preference for a dominant presidency and a subordinated Council of Ministers, based on an ethnic quota, is dictated more by a desire to keep a tight rein on the central institutions than by any concern for effective policymaking. This motivation was also apparent, for example, in debates over plans to create a State Border Service.

The idea of having a border guard as the central government's instrument for controlling Bosnia's inter-national boundaries originated not with the presidency but with the donor countries represented in the Peace Implementation Council (held in Madrid in December 1998). At that time, the Office of the High Representative drafted a bill in collaboration with experts designated by the three presidency members. The legislation proposed a unified 1,300-strong police force to guard the country's borders. On November 10, 1999, the Serb and Croat presidents rejected the law and refused to submit it to the Parliamentary Assembly. Representatives from the Republika Srpska claimed that the proposal violated the Dayton Agreement, which gives them the power to control their own army. The law provoked much ire because it represents an asser-tion of state power at the expense of the lower federal units, which currently enjoy de facto control of the border. (In addition, some Bosnian Croats and Bosnian Serbs harbor dreams of reunification with their neigh-boring ethnic brethren and do not want a central military force patrolling their turf.) After much brokering and pressure from international forces, a watered-down version was finally prepared. On January 12, however, the bill was rejected by the House of Representatives (the lower house of the Parliamentary Assembly) as a result of opposition by the Serb members from Republika Srpska. The following day, the high representative provisionally enacted the law.

Similar struggles dogged attempts to enact a new election law. The proposed legislation (drafted by a working group of national experts under international supervision) would have transferred the responsibility for administering elections from the OSCE to national institutions. It was presented to the Council of Ministers, on October 21, by the chairman of the OSCE mission in Bosnia and the special adviser to the high representative, François Froment-Meurice. The bill dealt with elections not only to the central legisla-ture but also to the entities, cantons, and municipalities. Along with a few other new measures, it sought to introduce a system of open lists in multimember constituencies for the House of Representatives, and alternative (preference-ranked) voting for the tripartite presidency. On January 19, the bill was rejected by the lower House of Representatives on January 19, for two main reasons. CDU (the dominant Croat party) objected to the mechanism for the election of the presidency, which it thought would subject it to increased competition if the majority Bosniacs were to vote across ethnic lines for alternative Croat parties. The Bosniac PDA also objected, insisting that it not be optional, but required, that in all elections people vote in their place of prewar residency. (This would force a lot of Serbs presently living and voting in the Republika Srpska to vote in Federation municipalities, where they would represent a minority. It would also increase proportionally the relevance of the Bosniac votes cast in Republika Srpska, where a number of municipalities had a Bosniac majority before the war.)

When all attempts to reach a compromise failed, the bill was resubmitted to the House of Representatives on January 26, minus the provision on presidential elections. The text was rejected again,.putting an end, for the time being, to international attempts to devolve electoral procedure into the hands of national politicians.

The central republican parliament has, neverthe-less, made some progress in the last few months. On February 3, it approved a law creating its permanent secretariat-the first step toward a central government civil service. The parliamentary secretariat will include three branches: one for each chamber of parliament, plus a third for the common technical services. Each branch is headed by a secretary-general of a different ethnicity-in other words, one Bosniac, one Croat, and one Serb-who will be appointed by the chairman and deputy chairmen of parliament. In contrast to the pres-idential administration, the remainder of the secretariat's 51 members will be selected by open public competition without ethnic quotas. It is hoped that this will put the secretariat on a more professional (and less political) footing.

On December 3, the upper house approved the Law on Refugees and Displaced Persons in Bosnia and Herzegovina and the Law on Immigration and Asylum. The latter, in particular, was a breakthrough-relatively speaking. Its approval by the House of Representatives on November 24-after a previous rejection on October 27-was the first successful example of the conciliatory process envisaged in Art. IV.3.(d) of the Constitution. According to this provision, a bill that obtains a simple majority, but lacks the additional one-third of votes from each entity (see Art. IV.3.[d]), is forwarded to a committee consisting of the house's chairman and deputy chairmen in an attempt to broker a compromise. The asylum law also succeeded in putting some muscle into Article III.1.(f) of the Constitution, which states that the central institutions are responsible for "immigration, refugees and asylum policy, and regulation." Finally, Art. 53 of the law contained the first germ of a central judiciary beyond the Constitutional Court, namely, an "appeals panel" that will review final administrative decisions made by the Ministry of Civil Affairs and Communications in asylum and immigration cases.

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The Constitutional Court recently issued a number of decisions that helped bolster its supremacy over the judicial systems of the two entities. In the fall, the Constitutional Court heard an appeal from the Supreme Court of Republika Srpska concerning orders for housing evictions, which the Constitutional Court reversed. On December 3, the Court heard its first appeal regarding a decision by an entity's Constitutional Court. The appeal had been brought by the Posavina Canton against the Federation's Constitutional Court, which had invalidated the use of the word zupanija (a politically loaded Croatian term for a territorial admin-istrative unit) in the cantonal constitution. Although the case was dismissed, the Court's willingness to review it marked a step in the consolidation of Bosnia's federal structure, affirming the supremacy of federal-level constitutional jurisdiction over the entities.

The most dramatic event regarding the Constitutional Court was the resignation, on January 28, of Judge Marko Arsovic. Arsovic apparently resigned over a disagreement on the procedure followed in the Council of Ministers case. Arsovic was one of the two judges nominated by the National Assembly of Republika Srpska, and his resignation exacerbated the tensions in current Court deliberations in a case submitted by Izetbegovic dealing with the compatibility of the entities' constitutions with that of Bosnia and Herzegovina.

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At the entity level, the most significant legislative steps were taken not by national parliaments but by the high representative. After failed attempts to have the two entities' laws on real property harmonized in order to facilitate the return of refugees and displaced persons to their prewar homes, the high representa-tive enacted a comprehensive reform on October 27. His legislative package included two laws imple-menting the decisions of the Commission for Real Property Claims of Displaced Persons and Refugees (CRPC) as they apply to both the Federation and the Republika Srpska. (The CRPC is an international organ created by Annex 7 of the Dayton Peace Agreement to determine occupancy and ownership rights in the cases of displaced claimants.) The reform project also included amendments to a December 1998 Republika Srpska law on abandoned property, intended to bring the legislation into line with its Federation counterpart. The high representative also provided detailed instructions for the application of the new property legislation in both entities.

As far as genuine legislative activity by the entity parliaments, the most notable event in the Federation was the approval, on October 25, of the new Law on Labor. This legislation, which regulates private employ-ment relations, supersedes the labor law inherited from the Yugoslav period. The World Bank, which predicated the granting of credits on its adoption, had been a vigorous advocate of the law. While generally bringing Bosnian labor regulations closer to Western standards, the legislation also included a political sop, written with an eye to the upcoming elections. Article 143 provides very generous severance payments to about 60,000 "redundant" workers (many of whom lost their jobs during ethnic cleansing within public enterprises). In the wake of some criticism from the international community, the government admitted that it did not have the funds to support this measure.

In the National Assembly of Republika Srpska, the signal event was the passage of a new law on entity citizenship. Approved on November 18, the law replaces the overtly discriminatory law that had been adopted at the beginning of the conflict, in 1992. The text, drafted in cooperation with the Council of Europe and the UN High Commissioner for Refugees, imple-ments the provisions of the 1998 Law on Citizenship of Bosnia and Herzegovina, which, in line with Art. I.7.(a) of the Dayton Constitution, envisages entity citizenship as the main criterion for conferring citizenship in the internationally recognized state. A last-minute amend-ment expanded its application to Serb refugees from Croatia. Previously, the law had conformed with the Federation's citizenship law, stating that those who had been in the republic since April 6, 1992, could be granted citizenship. The amendment stipulates, as the cut-off date, a basically indefinable threshold: the "beginning of hostilities in the former Yugoslavia."

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