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Special ReportOctober 2006 | Special Report No. 175 From Dayton to Brussels: Constitutional Preparations for Bosnia's EU AccessionDon Hays and Jason Crosby Summary
IntroductionThe European Commission for Democracy through Law, also known as the Venice Commission, is an internationally recognized, independent legal think tank and advisory body on constitutional matters created by the Council of Europe. The commission was established in 1990 as a tool for emergency constitutional engineering and has come to play a unique role in disseminating the European constitutional heritage, managing crises, and preventing conflict through constitution building. In March 2005 the Venice Commission criticized the constitutional situation in BiH, noting, "There is a powerful wish [among the citizens of Bosnia] for the country to participate in European integration with the final aim of becoming a member of the EU."1 However, the commission and the European Parliament believed that "a stabilization and association agreement, as the first step in this direction, will require institutions at the state level far more effective than those [that] exist [today]." Bosnia's future lies in Europe, but its constitution is anchored in the postwar Dayton peace agreement. Safeguards to ensure ethnic parity were necessary to secure the peace ten years ago, but in the words of the commission, "it is unthinkable that [Bosnia] can make real progress with the present constitutional arrangements."2 The Venice Commission report was issued at the request of the Bosnian government to facilitate future constitutional deliberations in Bosnia. However, the impetus for change accelerated with the initiation of the EU's Stability and Association Agreement (SAA) and the pressing requirement for Bosnia's government to face hard fiscal realities as it responded to the demands of EU accession. Without constitutional change and reordering of governmental authorities, the country cannot realistically address the imperatives of the SAA; nor can it hope to finance the required state institutions. How has Bosnian constitutional reform proceeded to date, and what additional steps will be needed? ConclusionThe package of amendments represented consensus of five of the seven parties that began the process. And for the first time, support for the development of the state was based not on entity or ethnic issues but on party lines. The amendments dealt with the Venice Commission's concerns with regard to the presidency, the House of Peoples, minority representation in parliament, and the role of government. They did not eliminate all the problematic issues, such as the tri-presidency, bicameral parliament, entity voting in parliament, or the existence of the entities themselves. However, the agreement represented a significant step forward for the Bosnian political leaders. In a groundbreaking step, Bosnian politicians found both a process and the political will to reach consensus on the state constitution. Unfortunately, after leading the working group deliberations in an extremely constructive manner and indicating that the parties had reached consensus on the major issues and the process, the SBiH broke ranks with the other parties and withdrew from the process. The party's leadership decided it would fare better in the upcoming elections by attacking both the process and the results as a plot imposed by foreigners to consolidate the powers of the RS by cementing them in the constitution. Despite his earlier support for the process and leadership of the working group, the SBiH representative denounced the proposed amendments in parliament, declaring, "I was against the proposed amendments, and this is how I am going to treat them at the committee's session." 10 As a result of internal party disputes, former members of the HDZ in parliament joined with the SBiH in voting against the package. The result was that on April 26, 2006, in a 26-16 vote, parliament failed to ratify the amendments by the required two-thirds majority. After some deliberation, those supporting the package decided to wait until after the October election to resubmit the package for consideration. They speculated that the elections would change the political alignment in parliament enough to ensure passage. The Council of Europe, EC, EU, and the U.S. government all expressed disappointment with this outcome. There is no doubt that if the next government is formed on the basis of the existing constitution, four years will pass before needed reforms can be undertaken. This failure will ensure a significant delay in the EU membership process and leave Bosnia-Herzegovina with a weak and dysfunctional government just as the OHR closes. On the other hand, if a new parliamentary coalition passes the amendments in October or November 2006, the new government can begin work with a newly empowered executive and a streamlined decision-making process. This new framework will create the possibility of a more functional government and give the EU confidence that it is dealing with a state that can uphold its commitment to the EU. The country then can turn to other needed reforms: strengthening and granting greater independence to local government, redefining the roles of all levels of government, improving government services, and reducing the cost of government to the average citizen. The first phase of negotiations was extremely difficult, and the second phase will be no less difficult. It will require vision, political will, and a commitment to making government work for the citizens, not just for the country's politicians. Change in government should be motivated not only by the demands EU accession places on the country, but should be anchored in commitment to the citizens, making everyone feel that the citizenry will play a growing role in the country's future. Recommendations
Notes1. See www.venice.coe.int/site/main/presentation_E.asp. 2. European Commission for Democracy through Law (Venice Commission). Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative (Venice: March 11, 2005), paragraphs 20, 26. 10. H. Orahovac, "Five of Nine Committee Members Against Amendments?" Dnevni Avaz, April 12, 2006 (in Bosnian). About the ReportIn 2004 the European Commission for Democracy through Law issued a report on constitutionalism in Bosnia-Herzegovina, noting several changes Bosnia would have to make to begin the EU accession process. With the help of the United States Institute of Peace, the Public International Law and Policy Group, and the Dayton Peace Accords Project, the leaders of Bosnia's major political parties began a consensus-driven process to produce constitutional amendments to address these issues. This was the first time since Dayton that Bosnia's political leaders sat down to discuss constitutional reform on their own initiative. Ambassador Donald Hays is the chief operating officer of Business Executives for National Security. At the Center for Post-Conflict Peace and Stability Operations of the United States Institute of Peace, he worked on post-conflict recovery in the Balkans and served as the lead adviser and mediator of the multiparty negotiations on constitutional reform in Bosnia-Herzegovina. He was the principal deputy high representative in Bosnia-Herzegovina from 2001 to 2005. Jason Crosby has worked on post-conflict recovery and municipal governance in Bosnia-Herzegovina and economic reconstruction in Iraq at the Institute's Center for Post-Conflict Peace and Stability Operations. Of Related Interest
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