comparing vital interest clauses in the constitutios of bih and belgium

8/14/2019 Comparing Vital Interest Clauses in the Constitutios of BiH and Belgium

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PROTECTION OF VITAL INTERESTS OF THE

CONSTITUENT PEOPLES

A COMPARISON OF THE RELEVANT CLAUSES IN THE CON-STITUTION OF BELGIUM WITH SIMILAR ARTICLES IN THE

CONSTITUTION OF BOSNIA AND HERZEGOVINA


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I

T a b l e o f C o n t e n t s

TABLE OF CONTENTS..............................................................................I

ACKNOWLEDGMENTS........................................................................... IV

INTRODUCTION ........................................................................................1

Hypothesis............................................................................................................................ 2Methodology ........................................................................................................................3

CHAPTER 1- CONSTITUTIONS ...............................................................7

What Is A Constitution? ....................................................................................................7

Additional Constitutional Functions .............................................................................10

CHAPTER 2- BELGIUM AND ITS CONSTITUTION.......................... 13

Belgium, A unitary state...................................................................................................13Constitutional reform in Belgium..................................................................................15

The first and second state reforms ................................................................................16 The third and fourth state reforms ................................................................................18 The continued reform process .......................................................................................20

CHAPTER 3- THE DAYTON CONSTITUTION OF BIH....................21

Dayton and the Constitution of Bosnia and Herzegovina........................................21

CHAPTER 4- THE CONSTITUTIONAL COURT DECISION............26

Agreement on the Implementation of the Constituent Peoples Decision ofthe Constitutional Court of Bosnia and Herzegovina................................................28


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Protection of Vital Interests of the Constituent Peoples

II

Vital interest protection ............................................................................................28 Article 1 - The legislature...................................................................................28 Article 2 - Minimum number of representatives in the RepublikaSrpska National Assembly/Federation of Bosnia and HerzegovinaHouse of Representatives..................................................................................28

Article 3 - Composition of the Council of Peoples and the House ofPeoples and selection of members ..................................................................29

Republika Srpska (Council of Peoples)....................................................29Federation of Bosnia and Herzegovina (House of Peoples)...............29

Article 4 - Definition of vital interest: .............................................................30 Article 5- Parliamentary procedure for the protection of vital interests...30

a. Procedure for laws related to a vital interest as defined in the listof Article 4 ....................................................................................................31b. Procedure for laws related to a vital national interest if sodecided by two-third of one of the caucuses of the constituentpeoples in the House of Peoples/Council of Peoples..........................32

Distribution of key political functions ...................................................................33Minimum Representation in the government of the Federation of Bosniaand Herzegovina and of the Republika Srpska ....................................................34Proportionate representation in all public authorities, including courts..........35Final/transitional provisions....................................................................................35

Harmonization of principles with regard to the Cantons of theFederation of Bosnia and Herzegovina..........................................................35

Tasks of the House of Peoples and the Republika SrpskaConstitutional Commission ..............................................................................36Interpretation of this agreement ......................................................................36

CHAPTER 5 - MECHANISMS TO PROTECT VITAL INTERESTSIN BELGIUM...............................................................................................37

Article 54 Group Veto, Alarm-Bell Procedure............................................................38Special Majority Laws.......................................................................................................39Equal Representation and Participation........................................................................40

The Territorial Principe....................................................................................................41 The Belgian Court of Arbitration...................................................................................42

Jurisdiction of the Court of Arbitration.................................................................43Regulations reviewed by the Court of Arbitration .......................................43Regulations constituting the yardstick for review.........................................44

Method of referral......................................................................................................44Actions for annulment.......................................................................................44 Preliminary issues................................................................................................45

Effects of judgments.................................................................................................46

CHAPTER 6 - MECHANISMS TO PROTECT VITAL INTERESTSIN BOSNIA AND HERZEGOVINA.........................................................48


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III

Vital Interests in the entity constitutions.................................................................48The Constitutional Court.................................................................................................50

Composition of the Bosnia and Herzegovina Constitutional Court................51Jurisdiction...................................................................................................................52

Disputes arising out of a conflict of competence and an abstractreview of constitutionality.................................................................................52

Disputes of state organs .............................................................................52Evaluation of constitutionality of laws ....................................................53Initiation of proceedings ............................................................................53

Appellate Jurisdiction.........................................................................................54 Referral of an issue by a court..........................................................................54Unblocking of the Parliamentary Assembly ..................................................55

Federation of Bosnia and Herzegovina House of Peoples and RepublikaSrpska Council of Peoples...............................................................................................55Federation of Bosnia and Herzegovina and Republika Srpska ConstitutionalCourts..................................................................................................................................56

The distribution of positions among the constituent peoples..................................56The Territorial Principle...................................................................................................60 Human Rights Chamber/Court and the Office of the Ombudsman.....................61

The Federation of Bosnia and Herzegovina Ombudsman Institution.....64The Republika Srpska Ombudsman Institution ...........................................64

CHAPTER 7- THE USE AND ABUSE OF VITAL INTERESTS..........66

The Use Of Vital Interest Clauses .................................................................................66 Abuse Of Vital Interests ..................................................................................................67 And What About The Others?.......................................................................................68

CONCLUSIONS ..........................................................................................70

The Assumptions And Their Proof...............................................................................70Belgium And Bosnia And Herzegovina Offer Similar Protection Of VitalInterests........................................................................................................................71Belgium And Bosnia And Herzegovina Have Similar Institutions ToEnsure That This Constitutionally Guaranteed Protection...............................72Belgium And Bosnia And Herzegovina Succeed In Translating TheseLegal Provisions Into Effective Policies................................................................72

BIBLIOGRAPHY........................................................................................76


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IV

A c k n o w l e d g m e n t s

First, I would like to thank Aida, my patient and loving wife, who has been agreat source of strength all through this work and who gracefully put up with

the magazine articles, books and research papers strewn throughout the

house. Aida, thank you and I love you! And lest I forget it, your translation

skills and lecturing just made this thesis so much better.

Thanks also to my supervisor and mentor, Professor Dr. Omer Ibrahimagic,

not only for introducing me to constitutional law but for letting me proceed

my own way on this thesis until I needed guidance, and for being there withpointed advise when asked!

I am also extremely grateful to all the people that gave generously of their

time and let me interview or bother them with minute details of constitutional

law. In particular, I would like to thank Dr. Haris Silajdzic, Dzemil Sabrihaf-

izovic, Eduard DAoust of the OHR and Professor Andr Alen for giving

generously of their time. The informal support and encouragement of my

family and many friends has been indispensable, and I would like particularly

to acknowledge the contribution of Dan Bronkhorst: without your proofread-

ing and helpful comments, this thesis would just not be the same; and Milica

Kranjcevic-Jensen and Aida Mulaomerovic, thank you for your help with

translating parts of this material.


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1

I n t r o d u c t i o n

Belgium, like Switzerland, is often cited in Bosnia and Herzegovina as an ex-ample of peaceful co-habitation and a model for the organization of the state

and its highest institutions. There are a number of important differences be-

tween Bosnia and Herzegovina and Belgium, not in the least the fact that the

country when the European powers acknowledged it as an independent and

perpetually neutral state was a unitary and centralized state of Belgians and not

of its linguistic groups. Belgium, through a series of constitutional reforms,

gradually devolved powers from the central government towards its regions

to become a federalized state in 1993.

Bosnia and Herzegovina, in spite of its long tradition as a multi-confessional,

multi-cultural and multi-national country, has gone down a different path

since the dissolution of the Socialist Federal Republic of Yugoslavia. Al-

though some defined their country as the state of Bosnians, centrifugal

forces tore the country up along nationalistic lines drawn in the sand a long

time ago, in an era when belonging to one group, Bosniacs, Croats or Serbs,

was more important than affiliation with the country to which these people

belonged. The Dayton Peace Agreement, a package deal stopped the fighting

in Bosnia and Herzegovina, imposed a constitution, and once more defined

the peoples of the country not as citizens but as Bosniacs, Croats, Serbs and

Others. The constitution, along with many other elements of the Dayton


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Peace Agreement, attempts to coax these groups into accepting a common

identity citizens of Bosnia and Herzegovina. However, was this not exactly

what some did not want in 1991 and started a war over?

Bosnia and Herzegovina is not that easily comparable with Belgium, or Swit-

zerland, the other often cited example of a multi-state, apart form the fact

that they are decentralized states in which several groups feel that the other

groups could, if left unconstrained, get unfair advantage over them and that

there is a need to provide institutions with the necessary checks-and-balances

to prevent one group from dominating the other.

These mechanisms and institutions to maintain a balance of power betweenthe peoples of Bosnia and Herzegovina or Belgium will form the basis of this

thesis.

HYPOTHESIS

Comparing the constitutions or laws of different countries raises the prospect

of a number of assumptions. When comparing vital interest clauses in the

constitutions of Belgium and Bosnia and Herzegovina, even cursory reading

of the two documents reveals immediately that both constitutions contain

provisions to protect the vital interests of the peoples it governs establishing

that fact does not require serious research.

A hypothesis that either countrys institutions are more likely to use these

clauses than the others, would entail careful quantitative analysis not only of

the number of instances and the circumstances in which these clauses have

been effectively used but also of how often they have been used as a threat in

parliamentary debates. Such statistics are unfortunately not kept by the institu-

tions in either Belgium or Bosnia and Herzegovina and thus such hypothesis

is not researchable.


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Comparing the institutions and mechanisms in place in Belgium and in Bos-

nia and Herzegovina, and assessing their effectiveness in the protection of

vital interests based upon textual analysis of source documents and decisions

taken by the institutions and bodies that are supposed to protect these inter-

ests, would offer insight in similarities and differences between the two con-

stitutions.

A proffered hypothesis could thus be:

Belgium and Bosnia and Herzegovina offer similar protection of vital

interests for the peoples they embrace and both have similar institu-

tions to ensure that this constitutionally guaranteed protection is trans-

lated into effective policies.

METHODOLOGY

Etymologically, method is originally from Greek mthodos, a compound of

met after and hodsway, road. Classical Greek mthodosoriginally means

following after, pursuit, hence (in philosophical contexts) pursuit of knowl-

edge, investigation; by further extension, it refers to a plan or strategy for car-

rying out an investigation, such as Platos dialectic method (h dialektik mthodos,

Republic 533c)1. In modern times, methodhas come to mean a way or proce-

dure for doing anything, sometimes more systematic, sometimes less.

For many nineteenth-century writers however, especially French ones, method

or mthode has a stronger and more specific sense which is probably to be

traced to Ren Descartes (15961650). In 1628, even before he wrote his Dis-

cours de la mthode, Descartes had written, in Latin, a set of Rules for the direction

1 On-line version of the Liddell-Scott-Jones Lexicon of Classical Greek at the web site of the PerseusProject at Tufts University, edited by Gregory R. Crane (http://www.perseus.tufts.edu).


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of the mind (Regulae ad directionem ingenii)2, which were published posthumously

in 1701. The fourth of his Regulaeis the following:

Regula IV: Necessaria est methodus ad veritatem investigandam.

Rule IV: A method is necessary for investigating truth.

Descartes elaborates: By method I mean certain and easy rules, such that those who use

them precisely will never suppose anything to be true which is false, and will, without tiring

themselves by useless mental effort, but rather by gradually increasing their knowledge, arrive

at a true understanding of all those things of which they are capable.3

Comparing legal texts has been practised for as long as law exits. While con-

stitutions are typically associated with the Enlightenment thinkers of Europe,

it is important to recognise that they enjoy a long history. Aristotle already

compared the constitutions of the Greek city-states and his classification of

governments into three pairs of categories monarchy and tyranny, aristoc-

racy and oligarchy, constitutional government and democracy can be re-

garded as the earliest scholarly attempt to identify and understand constitu-

tionalism. His definition of constitutions is not unlike that of many twentieth-

century theorists; For Aristotle, a constitution is an organisation of offices in a city,

by which the method of their distribution is fixed, the sovereign authority is determined, and

the nature of the end to be pursued by the association and all its members is prescribed.4

The term comparative method emerges in the mid-eighteenth century, ap-

parently originating in the writings of Auguste Comte (17981857), founder

of the positive philosophy; the first occurrence is from 1838. At this period, the

2 Descartes, Ren [1701] 2000,Regulae ad directionem ingenii. Istanbul: Idea Publishing House. Availablehttp://www.idea-tr.com/metinler/regulae/desk01l.htm, July 2000

3 Ibid

4 Aristotle, Politics, trans. Ernest Barker (Oxford: Oxford University Press, 1995) 1289a 11-25, p. 135.


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term belongs to a discourse on the general methodology of the life sciences

and the newly conceived social sciences.

Scholars who established the social sciences were careful to distinguish it

from biology and psychology by developing specific methods for the study of

society. French sociologist mile Durkheim (18581917), prominent in this

regard, argued that various kinds of interactions between individuals bring

about certain new properties (sui generis ) not found in separate individuals.

Durkheim insisted that these social facts, collective sentiments, customs,

institutions, nationsshould be studied and explained on a distinctly societal

level (rather than on an individual level). To Durkheim the interrelations be-

tween the parts of society contributed to an integrated system with character-

istics of its own, exterior to individuals yet driving their behaviour.

In his effort to escape from the individualizing and particularizing approach,

German sociologist Max Weber developed a key conceptual tool: the notion

of the ideal type. An ideal type is an analytical construct that serves the inves-

tigator as a measuring rod to ascertain similarities as well as deviations in con-

crete cases. It provides the basic method for comparative study.

"An ideal type is formed by the one-sided accentuation of one or more points of view and by

the synthesis of a great many diffuse, discrete, more or less present and occasionally absent

concrete individual phenomena, which are arranged according to those one-sidedly emphasized

viewpoints into a unified analytical construct."5 An ideal type is not meant to refer to

moral ideals. There can be an ideal type of a brothel or of a chapel.

The ideal type involves an accentuation of typical courses of conduct and

never corresponds to concrete reality but always moves at least one step away

from it. It is constructed out of certain elements of reality and forms a logi-

cally precise, a coherent whole, which can, as such, never be found in reality.

Ideal types enable one to construct hypotheses linking them with the condi-5 Max Webers Homepage 1996, Frank Ehwell Rogers state University,

www.faculty.rsu.edu/~fehwell/Theorists/Weber/Whome.htm#ideal


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tions that brought the phenomenon or event into prominence, or with conse-

quences that follow from its emergence.

The comparative method, has since evolved in many directions, each relevant

to the subject of its study. Comparative law, as the study of differences and

similarities between the law of different countries and, more generally, of the

different legal traditions, was developed first of al in the United States of

America and became prominent with the rise of international institutions and

international private and public law.

Several disciplines have developed as separate branches of comparative law,

such as comparative constitutional law, comparative civil law and comparativecriminal law. Comparative law is an academic study of existing separate sys-

tems, each one analysed in its constitutive elements, of how these difference

elements differ in the different systems and how these elements are combined

into a system.

Comparative law is not a body of rules and principles. Primarily, it is a

method, a way of looking at legal problems, legal institutions, and entire legal

systems. By the use of that method, it becomes possible to observe, and togain insights, which would be denied to one who limits his study to the law of

a single country. Neither the comparative method, nor the insights gained through its

use, can be said to constitute a body of binding norms, i.e. of law in the sense in which we

speak of the law of Contracts or the law of Decedents' Estates. Strictly speaking, there-

fore, the term Comparative Law is a misnomer. It would be more appropriate to speak of

Comparison of Laws and Legal Systems. 6

6 Rudolph R. Schlesinger, et al., Comparative Law, Cases, text, materials (5th ed. 1988). [p. 1] (as quotedat: http://nersp.nerdc.ufl.edu/~malavet/seminar/ccmain.htm)


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C h a p t e r 1 - C o n s t i t u t i o n s

WHAT IS A CONSTITUTION?

The word constitution confers the notion of the make up of things in the

case of a states constitution, the make up of its territory, people, institutions

and the relationship between them. A typical definition of constitutions sees

them as codes of norms which aspire to regulate the allocation of powers, functions and

duties among the various agencies and offices of governments, and to define the relationship

between these and the public.7

Though in the history of nations the development of these codes is basedupon consensus among the citizens on the basic assertions of the relationship

between the state and its citizens a fact well illustrated during the constitu-

tional reforms in Belgium, the Constitution of Bosnia and Herzegovina was

the result of coercion (seebelow:Dayton and the Constitution of Bosnia and

Herzegovina).

constitutions are however, not just a set of norms on paper. The constitu-

tional tradition of countries often also includes unwritten elements, accepted

practices and declared principles. The constitution of Bosnia and Herzego-

vina, and especially the interpretation of its principles, in spite of attempt by

7 S.E. Finer, Vernon Bogdanor, and Bernard Rudden, Comparing constitutions Reprint Edition (Oxford,UK: Oxford University Press, 1998) p. 1.


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some, is no exception in this aspect: the National Assembly of Republika

Srpska, in reference to the constituent status of the peoples in Bosnia and

Herzegovina, raised the objection in proceedings during the so-called Constitu-

ent Peoples Casethat () the Preamble of the Constitution of Bosnia and Herzegovina

does not form part of the Constitution stricto sensu and has, therefore, no normative charac-

ter8. The Constitutional Court of Bosnia and Herzegovina however ruled that

thePreamble of the Constitution of Bosnia and Herzegovina must be seen as an integral

part of the text of the Constitution9, thus upholding the declared intentions and

principles as set out in the preamble.

However, the above-mentioned elements are insufficient to explain how con-

stitutions shape a communitys political life in different ways and different

times. Ultimately, constitutions are expected to be living matter, always in a

state of evolution. The Belgian constitution underwent four fundamental

changes over the last 30 years, changing the very organisation of the state

from a unitary, cohesive and centralised state to a federalised, decentralised

one. Bosnia and Herzegovinas case is somewhat more complex in this regard.

Although the constitution itself foresees procedures to amend the original

text as imposed in Dayton10, Prof. Dr. Omer Ibrahimagic rightly points out

that The Dayton Agreement is a complex and maximally balanced international agree-

ment that is not susceptible to change. () It is impossible to change partially, without call-

ing into question its entire architecture. It was drawn up with the intent to be implemented in

its entirety and to establish Bosnia and Herzegovina, with all its functions, as a normal

European state. 11

Modern constitutions and constitutionalism are closely intertwined with the

liberal idea of limited governmentand fundamental freedomsand the most func-

8 Constitutional Court of Bosnia and Herzegovina, DecisionU 5/98 IIIof 01 July 2000

9 Ibid.

10 Constitution of Bosnia and Herzegovina,Article X: Amendment

11 Prof. dr. Omer Ibrahimagic, The state of Bosnia and Herzegovina according to European Standards, Soros OpenSociety Fund 2004 (www.soros.org.ba)


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tional constitutions are often those that succeed in curbing the individual

powers of political actors in a political system on the one hand and in uphold-

ing the individual freedoms of the citizens of a state on the other. Determin-

ing whether Belgium or Bosnia and Herzegovina have the tools to do both

would be beyond the scope of this study, yet even a cursory reading of both

constitutions or of documents on how they was drawn up demonstrate that

limited government and fundamental freedoms are its core. Yet, the Constitu-

tion of Bosnia and Herzegovina also had a particularity not often found in

other constitutions: it is a hybrid, enshrining both collective and individual

rights.

Collective rights, although nowadays increasingly acknowledged in both the-

ory and practice, are nonetheless secondary to rights based on individual citi-

zenship. Peoples have often reasserted pre-existing territorial entitlements and

the language and cultural rights of national minorities are protected, but they

remain citizens of the states in which they live. Although Belgium is often in-

voked in Bosnia and Herzegovina as an example to justify the empowerment

of peoples, its relevance is only partial. Belgium provides for a system of

power-sharing among speakers of different languages, but it does not define

these groups constitutionally as separate nations. First of all, they are all Bel-

gian.

In the constitutional law and practice of the former Socialist Federative Re-

public of Yugoslavia and in the popular understanding of such matters that

still prevails today to be a constituent people (narod) amounts essentially to be-

ing a state creating people and to not being a national minority (narodnost, liter-

ally nationality), regardless of whether the people in question is a numerical

minority in the polity.

After the Second World War, the Yugoslav federation did not attempt to de-

fine Bosnia and Herzegovina unlike other republics, as the homeland of any-

thing other than its unnamed peoples and their working class. By 1974, how-


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ever, and after the effective recognition of Muslims (or Bosniacs) as a nation

in their own right in the late 1960s, the new Constitution of Bosnia and Her-

zegovina listed the Muslims, Serbs and Croats, and members of other nations

(naroda) and nationalities (narodnosti) who live in it as Bosnias peoples, but ac-

corded pride of place to working people and citizens12.

In post-Dayton Bosnia and Herzegovina, the constituent peoples possess

rights to representation at the levels of the state, which are intended to em-

power them to promote and defend their collective rights. These, in turn, are

termed vital interests in the Dayton constitution.

ADDITIONAL CONSTITUTIONAL FUNCTIONS

In complicated political systems that struggle to respond to a series of com-

peting demands, constitutions can play key roles that either facilitate or hinder

the successful transformation of those demands into effective decisions. In

Bosnia and Herzegovina, these competing demands are manifold, but they

can be summarised under broad headings: the degree of (de-)centralisation of

the state, national identity and the future of the constitutional organisation of

the country.

Legitimization of the state authority constitutions, by their very existence, estab-

lish a people to which a governmental authority is to apply. Despite nationalis-

tic rhetoric that may include a founding myth, constitutional enactment can

be seen as the key moment that establishes a recognizable and recognized po-

litical community (Bosnians, Belgians, Swiss). Functional constitutions not

only create the people and define the state, but also justify and legitimize the

political authority, which assumes sovereignty over both. In this sense, (politi-

cal) nations are reinforced through a series of political tools, one of which can

be a constitution.13 One of the main challenges for the international commu-

12Ustav Socijalisticke Republike Bosne i Hercegovine(1974), Part I, Article 1.

13 Ulrich K. Preuss, Constitutional Revolution: The Link Between Constitutionalism and Progress (Atlantic High-lands, NJ: Humanities Press, 1995). (Quoted in Graham, Johan & Marques, Elder C. Understanding con-stitutions: A roadmap for Communities, IOG, 2000. www.iog.ca)


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nity in Bosnia and Herzegovina, and ultimately for the countrys institutions,

is to instil in the citizens of Bosnia and Herzegovina a common identity, that

supersedes being Bosniac, Croat or Serb. On the other hand, certain provi-

sions of both the Constitution of Bosnia and Herzegovina and the constitu-

tions of the two entities prima facie discriminate against the so-called Others,

the non-constituent peoples, violating both themselves and international human

rights law.

Recognition of the rights and freedoms of citizenship Most constitutions express limi-

tations that are placed on the ability of the government to legislate or other-

wise act against the rights of citizens. These limitations, however, can repre-

sent obligations on the part of governments to provide resources to ensure

that these rights can be asserted in practice. Bosnia and Herzegovina and its

entities have some of the most comprehensive human rights protection

mechanisms enshrined in its constitution Bosnia and Herzegovina and both enti-

ties shall ensure the highest level of internationally recognized human rights and fundamental

freedoms.14, yet upholding these principles is still in the realm of institutions

and administrative bodies that have demonstrated a reluctance in defending

the rights of all citizens of Bosnia and Herzegovina, through their selective

application.

Establishment of mechanisms for adjudication In the event of conflict between po-

litical actors, a mechanism is required to render a final interpretation of con-

stitutional norms. That mechanism can represent special enforcement, as in the

case of a constitutional court, or political enforcement, as in the case of a su-

preme parliament or referendum process. In certain cases, this function also

includes the mediation of disputes between citizens.

Expression of basic beliefs and symbolism constitutions, either explicitly or implic-

itly, provide a coherent reflection of the basic beliefs adopted by a regime. For

14 Constitution of Bosnia and Herzegovina,Article II: Human Rights and Fundamental Freedoms


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example, the preamble may outline a set of core values that are embraced by

the regime or a foundational narrative to stir an emotional reaction from the

citizenry and promote some form of nationalism. The Constitutional Court of

Bosnia and Herzegovina explicitly stated that the Preamble of the Constitu-

tion of Bosnia and Herzegovina, which contains a number of basic beliefs, is

and integral part of the constitution itself and its spirit.

Provision of the flexibility of amendment Given the likelihood that evolving moral

standards or regional development patterns will eventually result in new po-

litical demands, functional constitutions provide a mechanism to allow

amendment. A lack of consensus surrounding the requirements for a success-

ful amendment, particular in the case of a federal state, may result in a deterio-

ration of the relationships between political actors.


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C h a p t e r 2 - B e l g i u m a n d i t s C o n s t i t u t i o n

BELGIUM, A UNITARY STATE

In the wake of Napoleons defeat at the battlefield in Waterloo, the Great

Powers decided at the Congress of Vienna, in 1815 to unite the Northern and

Southern Netherlands under King William I. Although his policy was nomi-

nally beneficial to the Belgian bourgeoisie, there was protest as the Catholics

objected to the interference of the protestant king in clerical matters while the

Liberals demanded more freedom. Belgium had always had two linguistic

groups, the Dutch-speaking Flemish in the north and the French-speaking

Walloons in the south. The administration, heavily dominated by the French-

speaking elite in both parts of the country, was in French, much to the cha-

grin of the Flemish.

In addition, in the period 1760 to 1830 the Industrial Revolution was largely

confined to Britain. Aware of their head start, the British forbade the export

of machinery, skilled workers, and manufacturing techniques. The British

monopoly could not last forever, especially since some Britons saw profitable

industrial opportunities abroad, while continental European businessmen

sought to lure British know-how to their countries. Two Englishmen, Williamand John Cockerill, brought the Industrial Revolution to Belgium by develop-

ing machine shops at Lige, and Belgium became the first country in conti-

nental Europe to be transformed economically. Lige, in the southern

(French-speaking) part of Belgium was a prime choice because of its abun-


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dance of coal and fast-running water, the main ingredients for a successful

steam-driven factory. The manufacture was established with funding from the

Dutch crown a fact that went down badly with the Flemish, who objected

to the partial industrialization of the country. The king at the same time

sought to appease the Flemish by decreeing that the administrations were to

use the language of the populace they were serving a direct attack on the

supremacy of the French-speaking ruling classes in Flanders.

In 1828, Catholics and Liberals drew up a concerted programme of demands

in a rare display of unionism; protests also erupted over the administrative

languages of the country and the perceived preferential treatment of Walloons

in the industrialization of the country. After a series of incidents, a revolution

erupted in Brussels in 1830. William I sent in his troops, but they were ex-

pelled on 27 September 1830 and Belgium seceded from the Northern Neth-

erlands when a provisional government declared independence on 4 October

1830. In early November, a National Congress was elected by an electorate of

30,000 men, and in February 1831, the National Congress adopted a constitu-

tion, which was very progressive for its time.

The Great Powers of the time recognised the secession of Belgium from theNetherlands and Leopold I of Saxe-Coburg became the first King of the Bel-

gians (1831-1865). Although the Great Powers forced Belgium to remain neu-

tral when it became independent, it could not escape World War I. The Bel-

gian army, under the command of King Albert I (1909-1934), was no match

for the Germans who occupied the country until they were brought to a halt

at the river Yser.

The years after the war were very difficult and the international economic cri-

sis affected the country. When the national-socialists came to power in Ger-

many, the dangers posed by that country rose again. Though Belgium from

1936 onwards took a neutral stance, Germany invaded again on 10 May 1940.


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Belgium experienced a remarkable economic resurgence in the early post-war

years. Monetary reform kept inflation under control, and liberalization of the

domestic economy quickly returned the market mechanisms to the centre of

the industrial, agricultural, and commercial activities. In the climate of recov-

ery, social legislation won the support of both unions and employers.

The question of relations between the communities has played a highly im-

portant part in recent Belgian history. Following four state reforms, Belgium

was transformed into a federal state.

CONSTITUTIONAL REFORM IN BELGIUM

Belgium has always been a crossroad of both the Germanic and Latin influ-ence, in its art, culinary traditions and of course, in its languages. Therefore,

when Belgium declared its independence, cultural pluralism was already a part

of its culture and heritage. Those differences in language and culture between

the various parts of the country ultimately led to the reform of the state in the

last quarter of the twentieth century.

The first major steps in the reform of the state were the laws on the use of

official languages, enacted between 1873 and 1963, recognizing French, Flem-ish and German as official languages of Belgium and regulating their use. Yet

these language laws on themselves did not reform the state to the extent that

was necessary to satisfy all aspirations of the peoples of Belgium. In addition,

the growing economic disparity between the two regions intensified dissatis-

faction with the unitary state system. The Flemish opposed subsidizing an

ailing regional economy that lacked any prospect of structural industrial re-

form. The Walloons, in turn, feared that the more numerous and prosperous

Flemish would soon dominate the state. Linguistic and economic tensions

were now inextricable. Because of massive strikes in Wallonia in early 1961,

an immovable linguistic border was defined by an Act of Parliament in 1962

63, and a new special arrangement was elaborated for the bilingual area

around Brussels. The Constitution needed to be amended, a fact officially


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16

recognized and announced to the world when the then-prime minister Gas-

ton Eyskens on 18 February 1970 said in parliament that: the Unitary state has

been overtaken by events15

THE FIRST AND SECOND STATE REFORMS

At the start of the negotiations for the actual reform of 1970, the Walloon as

well as the Flemish were fully prepared and had their list of demands at hand.

The Flemish were specially concerned about the cultural autonomy, whereas

the Walloons demanded more economical autonomy and wanted guarantees

that their demographic minority would not lead to a marginal political posi-

tion.

The revision of the Constitution in 1970 resulted in the setting-up of the three

cultural communities in a response to the pursuit of cultural autonomy by the

Flemish. From the legal viewpoint, that meant the start of the process of state

reform. The birth of the three cultural communities is, as the name suggests, a

sign of certain autonomy in relation to culture. However, the powers of those

cultural communities are still extremely limited. In addition, the foundation

was laid for the creation of three regions, each with their own territory in re-

sponse to the pursuit by French-speakers - the Walloons and French-speakingpeople of Brussels - for economic autonomy.

Some constitutional guarantees were constructed to secure the position of the

French-speaking minority in Belgium. To this end, the parliament was divided

into language groups and from then on a, special majority, that is a majority in

both of the language groups, was needed to vote laws which touched the con-

stitutional rights of the Belgians. Furthermore, the constitution stated that as

many Walloon as Flemish ministers should be part of the Belgian govern-

ment, the prime minister excluded.

15 Annales Parlementairs (parliamentary Proceedings), House of Representatives, 18 February 1970, pp.3-5 as quoted inAlen, professor Andre and Ergec, professor Rusen, Federal Belgium after the Fourth stateReform of 1993


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17

In 1980, the second state reform took place. The work that started in 1970

was continued when the cultural communities became known just as communi-

ties. That happened because the communities decided not only about cultural

matters but also about matters relating to the individual, in other words health

and social services.

As a result, from 1980 these three communities were known as the Flemish-

speaking Community, the French-speaking Community and the German-

speaking Community. These communities were each given a Council (their

Parliament) and a government.

With the state reform of 1980, two regions were also established: the Flemish

Region and the Walloon Region. They also had a Council and a government.


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In Flanders, the government and the Council of the Flemish Region merged

with the government and the Council of the Flemish-speaking Community.

Therefore, in Flanders, there is only one government and one Council for the

Community and the Region. The French-speaking population did not choose

to merge the institutions of the French-speaking Community and the Walloon

Region.

There are many more French-speaking people in Brussels compared with

French-speaking Walloons than there are Flemish-speaking people in Brussels

compared with people in Flanders, making that French-speakers are some-

what over-represented if compared to Flemish-speakers, another important

feature of this second phase in 1980 is that the Brussels Region, although rec-

ognised in 1970, was put (with regard to its institutions) on hold. However,

that changed in the next, third state reform.

THE THIRD AND FOURTH STATE REFORMS

During the third state reform in 1988-89, it was mainly the Brussels-Capital

Region that took shape. Like the other two regions it received its own institu-

tions, and in particular a Council - its Parliament - and a government. The

Council of the Brussels-Capital Region votes on ordinances and the govern-ment implements them. Brussels became a fully-fledged region with its own

parliament and government, with the guaranteed representation of the Dutch-

speaking minority.

With the third state reform of 1988-1989, the communities were given more

powers and the regions were consolidated. The most important change was

no doubt the transfer of education to the communities, but also areas as envi-

ronment, economy, scientific research and public works were further federal-

ized. Finally, the financing of the regions and communities was settled. Where

they depended on donations of the national government before, they now

could count on a fixed part of the national taxes.


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Finally, the process of state reform, which started in 1970, was completed

with the fourth state reform in 1993. The Belgian state is now a fully-fledged

federal state. The communities and the regions, which were set up under pre-

vious reforms, now received their full powers. In short, the edges and incon-

gruities of the previous reforms were smoothed down as much as possible.

Furthermore, the direct election of the councils of the several federal units

was made possible and the province of Brabant was divided into a Flemish

and Walloon province, Flemish- and French- Brabant. Of considerable im-

portance was the assignation of a constitutive autonomy to the federal units,

which made it possible to settle independently the organisation and structure

of their institutions within the boundaries of the constitution.

On 14 July 1993 (at 7.31 pm), the Belgian Parliament (in this case the Senate)

took the final vote on the state reform. That amended the first clause of Arti-

cle 1 of the Constitution, from: "Belgium is divided into provinces" to "Belgium is a

Federal state which consists of communities and regions".

There is no hierarchy between the national level (the federal state) and the

regional levels (communities and regions). Both of the levels have equal status

and they exercise their powers independently in different fields. The compe-tences of the federal state are amongst others: the constitution (the federal

states do not (yet) have their own constitution), defence, social security, la-

bour, pensions, justice, foreign affairs concerning federal matters, develop-

ment cooperation, finance,...and the so-called residue powers, the powers

which were not explicitly ascribed to the communities and regions. The com-

petences on the regional level are divided between the communities and the

regions. The communities competences are amongst others education, cul-

ture and welfare; the regions are responsible for (amongst others) transport,town and country planning, environment en employment.


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THE CONTINUED REFORM PROCESS

The Belgian Senate established the COSTA (the Conference for state Re-

form) in 1999 to provide a forum in which reforms of the state can be dis-

cussed among the communities in a serene environment. The COSTA has 31

members 15 Flemish-speaking, 15 French-speaking and 1 German-

speaking. This continuous consultation process is sometimes referred to as

the fifth state reform.

The Belgian government's institutional reform program on devolution of

competencies of June 2001 transfers agriculture and foreign trade responsibili-

ties to the regional governments, as well as greater fiscal autonomy and a re-

structuring of finances for the linguistic communities. The Federal govern-

ment is now only responsible for issues such as justice, the interior, foreign

policy, defence, social security and important parts of health.


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21

C h a p t e r 3 - T h e D a y t o n C o n s t i t u t i o n o f B i H

A Constitution should be short and obscure.

Napoleon Bonaparte(17691821), French general, emperor

DAYTON AND THE CONSTITUTION OF BOSNIA AND HER-

ZEGOVINA

Although I am well-aware of the long history of Bosnia and Herzegovina as acountry, a fact that was recognized and enshrined in Article I of the Constitu-

tion of Bosnia and Herzegovina16 as adopted in Dayton, Ohio, for the pur-

pose of this thesis, I will treat the history of Bosnia and Herzegovina as of the

end of the war and the implementation of the General Framework Agree-

ment for Peace and subsequent regulations and legal acts. This simplification

is dictated by the fact that the Bosnia and Herzegovina Constitution was

completely rewritten in Dayton to reflect the new reality of post-war Bosnia

and Herzegovina.

16Article I: Bosnia and Herzegovina Continuation. The Republic of Bosnia and Herzegovina, theofficial name of which shall henceforth be "Bosnia and Herzegovina," shall continue its legal existenceunder international law as a state, with its internal structure modified as provided herein and with itspresent internationally recognized borders ()


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In Dayton, the future constitution of Bosnia and Herzegovina received its fair

amount of discussion and some provisions were negotiated over fiercely.

Demil Sabrihafizovic, a lawyer on the Bosnia and Herzegovina negotiating

team, characterized the Dayton Peace Agreement as a package deal, an all-or-

nothing agreement that first of all aimed at stopping the fighting in the coun-

try and secondly at establishing a country with viable institutions at different

levels, acceptable to all. He conceded however, that the constitution, like

many other aspects of the Agreement, often suffered from concessions that

were made on the territorial issues negotiated over the maps of Bosnia and

Herzegovina17. The Dayton Peace Agreement left Bosnia and Herzegovina

with a complicated structure: the country, though within its recognized bor-

ders, is made up of two entities: the Federation of Bosnia and Herzegovina,

which in turn is divided in ten cantons, and the Republika Srpska. The terri-

torial division of the country in Dayton was partially based upon proposals

advanced in earlier peace plans and the general principle of a 49%-51% split

was already worked out and agreed to before the delegations started the nego-

tiations at the Wright-Patterson Airbase in Dayton. The cantonisation of the

Federation of Bosnia and Herzegovina the name is a misnomer in itself

was agreed to a year earlier in Washington when Croatia formally agreed to

recognise Bosnia and Herzegovina and to relinquish any claims on the coun-

try or the Croats that lived in it, though the day-to-day politics of Croatia con-

tinue to loom over the (Croat-dominated) parts of Bosnia and Herzegovina to

this day.

The smaller of the entities would continue to be denoted by its war-time

name Republika Srpska, a fact that remains on of the greatest regrets of the

principal US negotiator, Richard Holbrooke18.

17 Interview with Dzemil Sabrihafizovic, a member of the Bosnian government negotiating team in Day-ton.

18 Holbrooke, Richard, To end a war, 3rd Ed., New York, USA, Modern Library (Paperback), May 1999,464 pages


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Although Bosnia and Herzegovina is declared to be an internationally recog-

nized state in its own right, the Dayton Peace Agreement in order to secure

an agreement in the first place, limited the states competencies to a bare

minimum, as there was no other way to get the opponents of a unified Bosnia

and Herzegovina to agree to the establishment of a state at all. This conces-

sion implies that the entities were given an enormous degree of autonomy and

independence over those issues that are traditionally within the realm of the

central state.


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The entities, apart from a well-defined territory have all three pillars of a

modern state: legislative, judicial and executive powers over all that is not ex-

plicitly part of the states jurisdiction. They each have their own defense sys-

tem, including a standing army, police forces, customs and tax administrations

etc.

Only under extreme pressure of the international community, and in order to

meet the requirements to join the European Union one day, some conces-

sions have been made and more authority has been given to the state, al-

though it must be pointed out that those most opposed to Bosnia and Herze-

govina the Serbs and to a lesser extend the Croats have tried more often

than not (and have sometimes succeeded) in obstructing re-centralisation.

The Constitution of Bosnia and Herzegovina stipulates that the constitutions

and laws of the entities, as normative acts of a lower order, must be fully in

accordance with the state-level constitution: The entities and any subdivisions

thereof shall comply fully with this Constitution, which supersedes inconsistent provisions of

the law of Bosnia and Herzegovina and of the constitutions and law of the entities, and with

the decisions of the institutions of Bosnia and Herzegovina. The general principles of inter-

national law shall be an integral part of the law of Bosnia and Herzegovina and the enti-

ties.19 This particular clause would, five years after the Constitution was im-

posed in Dayton, become the basis of a landmark decision of the Constitu-

tional Court of Bosnia and Herzegovina in the so-called Constitutional Peo-

ples Case.

The discussions over the constitution were almost all over the level of cen-

tralization, or rather decentralization of the state-level institutions. Vital inter-

ests as part of the constitution were discussed on the sidelines only, as part of

the argument over which competencies the state, or entities would have. The

Bosniac delegation argued for vital interest mechanisms at all levels to gain

19Constitution ofBosnia and Herzegovina: Article III (Responsibilities of and Relations between theInstitutions of Bosnia and Herzegovina and the entities).3.b


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leverage; the Croatian delegation, representing the Bosnian Croats, was inter-

ested in vital interest mechanisms at the state and Federation of Bosnia and

Herzegovina only a position they had propagated a year earlier in Washing-

ton when the Federation of Bosnia and Herzegovina was negotiated. The

Yugoslav delegation, on behalf of their Bosnian Serb brethren, preferred the

absolute minimum the state-level government, clearly with the intent to use

the concept of vital interests to block the functioning of these institutions and

to prevent Bosnia and Herzegovina from becoming a functional state20. The

negotiators tried their best to find common ground, and ultimately, all sides in

the negotiations came away with the impression that on vital interests they

had gained the position they thought most favourable. The undefined concept

of vital interests in the constitution appealed to the Croats they felt it could

be interpreted any which way; the Serbs where content that the concept ap-

plied only to state-level institutions. The Bosniacs from their point-of-view,

felt they were not given what they initially wanted but they saw an opportu-

nity to achieve their (political) aims through other institutions set up in the

constitution, most notably the constitutional court and the human rights in-

struments that are an integral part of the Constitution of Bosnia and Herze-

govina and the Dayton peace Agreement.

20 Interview with Dr. Haris Silajdzic


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C h a p t e r 4 - T h e C o n s t i t u t i o n a l C o u r t D e c i s i o n

In 1998, then-member of the Bosnia and Herzegovina Presidency Alija

Izetbegovic brought a case before the Constitutional Court of Bosnia and

Herzegovina. Mr. Izetbegovic argued that fourteen provisions of the Repub-

lika Srpska constitution and five provisions in the constitution of the Federa-

tion of Bosnia and Herzegovina violated the Bosnia and Herzegovina Consti-

tution. These provisions dealt with the political and legal concept of the con-

stituent peoples in the Constitution of Bosnia and Herzegovina that defines

Bosniacs, Croats, Serbs and others as having equal rights, versus their status

as defined in the entity constitutions.

The Constitutional Court of Bosnia and Herzegovina accepted to adjudicate

the matter as it was in its jurisdiction21. The case would become known as the

constituent peoplescase. After 28-months of highly politicized deliberations, the

Constitutional Court ruled that these provisions of the entity constitutions

were indeed in violation of the state constitution because they failed to grant

equal status to Serbs in the Federation of Bosnia and Herzegovina and to

Bosniacs and Croats in Republika Srpska. This ruling would have far-reachingimplications as it directed the entities to amend their constitutions to ensure

21 Constitution of Bosnia and Herzegovina,Article VI.3: Jurisdiction.


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full equality of Bosnia and Herzegovinas three constituent peoples throughout

their territory.

Though the decision does not pronounce itself on the rationality of Bosnia

and Herzegovinas entities, it clearly challenged the ethnical connotations and

make up of its structures. The ruling will have a bearing on all spheres of civic

life as it challenges institutional prejudice and discrimination in law, education,

the police, the work place and the provision of basic social services. Numer-

ous entity laws, including the constitutions, will have to be amended in light

of the new equal status of all three ethnic groups within the entities, to make

their institutions more alike.

The Constitutional Court does however not have any mechanisms to enforce

its decisions and as such, implementation depends on the will of the entities

to abide by the Court and the final and binding character of its decisions.

When by January 2001, six months after the decision, the entities had not

acted the High Representative intervened and established Constitutional

Commissions in the National Assembly of the Republika Srpska and Federa-

tion of Bosnia and Herzegovina House of Representatives. Each Commission

consists of sixteen members - four Bosniacs, four Croats, four Serbs, and fourOthers - selected by the OHR. The Commissions were tasked to prepare

proposals by 15 March 2001 for revising the entity constitutions. In addition,

they would have power to review and block entity legislation that might be

judged discriminatory. The parties made a (political) deal on 27 March 2002,

agreeing a package of amendments to their constitutions. The High Represen-

tative, the U.S. Ambassador and the Spanish Ambassador who represented

the EU presidency, praised the parties for the courage to compromise, and

vowed to see that the so-called Sarajevo Agreement would be translated faith-fully into workable amendments.


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AGREEMENT ON THE IMPLEMENTATION OF THE CON-

STITUENT PEOPLES DECISION OF THE CONSTITUTIONAL

COURT OF BOSNIA AND HERZEGOVINA

I. Vital interest protection

Vital interest protection shall be provided through

the House of Peoples in the Federation of Bosnia and Herzegovina,and

the Council of Peoples in Republika Srpska

Article 1 - The legislatureThe legislative authority shall be exercised in the Republika Srpska by the Re-

publika Srpska National Assembly and the Council of Peoples and in the

Federation of Bosnia and Herzegovina by the House of Representatives and

the House of Peoples.

In Republika Srpska, Laws and other regulations which are approved in the

Republika Srpska National Assembly and which concern the issue of a vital

national interest of any of the constituent peoples will enter into force only

upon adoption by the Council of Peoples.

Incompatibility: No delegate of the Republika Srpska National Assem-

bly/Federation of Bosnia and Herzegovina House of Representa-

tives/Municipal Council shall serve as a member of the Council of Peo-

ples/House of Peoples.

Article 2 - Minimum number of representatives in the Republika Srpska National As-

sembly/Federation of Bosnia and Herzegovina House of RepresentativesA minimum number of 4 members of one constituent people shall be repre-

sented in the Republika Srpska National Assembly and the Federation of

Bosnia and Herzegovina House of Representatives.


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Article 3 - Composition of the Council of Peoples and the House of Peoples and selection

of members

The Council of Peoples and the House of Peoples shall be composed on a

parity basis so that each constituent people shall have the same number of

representatives.

A minimum number of 8 and a maximum number of 17 members shall come

from a single constituent people. The Others shall be represented by a num-

ber not exceeding one half of the representatives of a single constituent peo-

ple in the Council of Peoples and House of Peoples respectively.

Others have the right to participate equally in the majority voting procedure.

Republika Srpska (Council of Peoples)

Members of the Council of Peoples shall be elected by the respective caucus

of the delegates of Republika Srpska National Assembly.

In the event that the number of delegates of one caucus in the Council of

Peoples is higher than the number of delegate in the respective caucus of the

Republika Srpska National Assembly this additional number of delegates shall

be elected by a caucus formed for this purpose from delegates from the Mu-

nicipal Assemblies of Republika Srpska.

After the next municipal elections, the final manner of election of the mem-

bers to the Council of Peoples shall be regulated by the Republika Srpska Na-

tional Assembly and the Council of Peoples.

Federation of Bosnia and Herzegovina (House of Peoples)

The members of the House of Peoples are elected from the representatives inthe cantonal assemblies, proportional to the ethnic structure of the popula-

tion. The number of Delegates elected from each canton shall be propotional

to the population of that canton.


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The House of Peoples shall have at least one Bosniac, on Croat and one Serb

from each all canton where these constituent peoples are represented in the

cantonal assemblies in accordance with the electoral results for that canton.

The election of representatives from the group of 'Others' shall be regulated by

law.

Article 4 - Definition of vital interest:

Vital national interests of constituent peoples are defined as follows:

exercise of the rights of constituent peoples to be adequately repre-sented in legislative, executive and judicial bodies,

identity of one constituent people, constitutional amendments, organisation of public authorities, equal rights of constituent peoples in the process of decision-making, education, religion, language, promotion of culture, tradition and cul-

tural heritage,

territorial organisation, public information system, and other issues treated as of vital national interest if so claimed by

two-thirds of one of the caucuses of the constituent peoples in theHouse of Peoples or Council of Peoples.

Article 5- Parliamentary procedure for the protection of vital interests

Laws or other regulations or acts approved by vote by the Republika Srpska

National Assembly will be sent and considered by the Council of Peoples if

they relate to a vital interest as defined in Article 4.


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Laws or other regulations or acts introduced into the Federation of Bosnia

and Herzegovina House of Representatives are also adopted in the Federation

of Bosnia and Herzegovina House of Peoples.

The Constitutional Courts of the Federation of Bosnia and Herzegovina and

Republika Srpska shall each have a maximum of 9 members.

A Vital Interest Panel of the Constitutional Court of the Federation of Bosnia

and Herzegovina/Republika Srpska shall be established deciding in the vital

interest procedure as described below. All Vital Interest issues shall be con-

sidered by this panel.

The Vital Interest Panel shall be composed of 7 members, 2 from each con-

stituent people and 1 from the group of Others. The judges shall be elected

by the House of Representatives and House of Peoples in the Federation of

Bosnia and Herzegovina and by the Republika Srpska National Assembly and

Council of Peoples in the Republika Srpska.

a. Procedure for laws related to a vital interest as defined in the list of Article 4

If more than one Chairman or Co-Chairman of the Council of Peo-

ples/House of Peoples (Council of Peoples/House of Peoples) claims that a

law comes within the list of vital interests as defined in the list of Article 4 the

law shall be put on the agenda of the Council of Peoples/House of Peoples as

vital interest issue.

If only one Chairman or Co-Chairman claims that the law falls within this list

a two-third majority of the respective caucus may declare the issue concerned

to be an item within the list. In this case the procedure followed is the one

outlined under Article 5.b below.

The Chairman and Co-Chairmen have one week within which to decide.


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If a majority of each caucus represented in the House of Peoples/Council of

Peoples vote in favour of such laws or other regulations or acts these are

deemed to be adopted.

If the House of Peoples/Council of Peoples agrees on amendments, the law,

regulation or act is resubmitted to the House of Representatives/Republika

Srpska National Assembly for approval.

If no agreement can be reached in the House of Peoples/Council of Peoples

or if approval is not given to proposed amendments, a Joint Commission

composed of representatives of the House of Representatives/ Republika

Srpska National Assembly and the House of Peoples/Council of Peoplesshall be established. The Joint Commission is composed on a parity basis and

decides by consensus. It shall seek to achieve the harmonization of the terms

of the law. If the terms are harmonized the law shall be deemed to be

adopted.

If no such harmonisation can be effected the law shall fail and the document

shall be returned to the proponent for a new procedure. In that event the

proponent may not re-submit the original law, regulation or act.

b. Procedure for laws related to a vital national interest if so decided by two-third of one of

the caucuses of the constituent peoples in the House of Peoples/Council of Peoples

In case two-third of one of the caucuses of the constituent peoples in the

House of Peoples/Council of Peoples decides that a law, act or regulation

affects a vital interest the law shall be considered by the House of Peo-

ples/Council of Peoples.

If a majority of each caucus represented in the House of Peoples/Council ofPeoples vote in favour of such laws or other regulations or acts these are

deemed to be adopted.


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If the House of Peoples/Council of Peoples agrees on amendments, the law,

regulation or act is resubmitted to the House of Representatives/Republika

Srpska National Assembly for approval.

If no harmonization can be established by the Joint Commission referred to

in lit a. above, the Constitutional Court of the Federation of Bosnia and Her-

zegovina/Republika Srpska shall be addressed to decide finally whether the

law in question relates to a vital interest of a constituent people.

A Vital Interest Panel of the Constitutional Court of the Republika

Srpska/Federation of Bosnia and Herzegovina shall decide by a two-third

majority within one week on the admissibility of such cases and within onemonth on the merits of cases held to be admissible.

In the event that the Article 5.b procedure has been triggered by a two-third

majority of one of the caucuses, the vote of at least two judges is needed for

the Court to decide that it is a vital interest.

In the event that the Court decides in favour of a vital interest the law shall

fail and the document shall be returned to the proponent for a new proce-

dure. In that event the proponent may not re-submit the original law, regula-

tion or act.

In the event that the Court decides that no vital interest is involved the law is

deemed to be adopted/shall be adopted by simple majority.

II. Distribution of key political functions

The Prime Minister and Deputy Prime Ministers may not come from the

same constituent people.

Out of the following positions not more than 2 may be filled by representa-

tives of any one constituent people or of the group of Others:

Prime Minister


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Speaker of the House of Representatives/Republika Srpska NationalAssembly

Speaker of the House of Peoples/Council of Peoples President of Supreme Court President of Constitutional Court Public Prosecutors Presidents of entities

The President shall have two Vice-Presidents coming from different constitu-

ent peoples. They shall be elected according to the Entity constitutions.

III. Minimum Representation in the government of the Federation of

Bosnia and Herzegovinaand of the Republika Srpska

The government shall be elected by the House of Representatives/Republika

Srpska National Assembly.

For a transitional period, until Annex 7 is fully implemented,

the Republika Srpska government (Prime Minister and 16 ministers)shall be composed of 8 Serb, 5 Bosniac and 3 Croat ministers. One

Other may be nominated by the Prime Minister from the quota of the

largest constituent people. There shall be additionally a Prime Minister

who shall have two Deputy Prime Ministers from different constitu-

ent peoples selected from among the Ministers; and

the Federation of Bosnia and Herzegovina government (Prime Minis-ter and 16 ministers) shall be composed of 8 Bosniac, 5 Croat and 3Serb ministers. One Other may be nominated by the Prime Minister

from the quota of the largest constituent people. There shall be addi-

tionally a Prime Minister who shall have two Deputy Prime Ministers

from different constituent peoples selected from among the Ministers.


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After Annex 7 is fully implemented, a minimum of 15% of the members of

the government must come from one constituent people. A minimum of

35% of the members of the government must come from two constituent

peoples. One member of the government must come from the group of the

Others.

IV. Proportionate representation in all public authorities, including

courts

Constituent peoples and members of the group of Others shall be propor-

tionately represented in public institutions in the Federation of Bosnia and

Herzegovina and in Republika Srpska.

As a constitutional principle, such proportionate representation shall follow

the 1991 census until Annex 7 is fully implemented, in line with the Civil Ser-

vice Law of Bosnia and Herzegovina. Further and concrete specification of

this general principle shall be implemented by Entity legislation. Such legisla-

tion shall include concrete time lines and shall develop the aforementioned

principle in line with the regional ethnic structure in the entities and the Can-

tons.

Public institutions as mentioned above are the ministries of the Federation

of Bosnia and Herzegovina government, of the Republika Srpska government

and of Cantonal governments, municipal governments, Cantonal Courts in

the Federation of Bosnia and Herzegovina and District courts in Republika

Srpska, and municipal courts in the Federation of Bosnia and Herzegovina

and Republika Srpska.

V. Final/transitional provisions

Harmonization of principles with regard to the Cantons of the Federation of Bosnia and

Herzegovina

Within 9 months from the adoption of the amendments to the Entity consti-

tutions, the principles contained in this document shall be applied to the Can-

tons of the Federation of Bosnia and Herzegovina.


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Vital interest protection bodies shall be established in the Cantons and mini-

mum representation has to be guaranteed with regard to the Cantonal gov-

ernments.

Tasks of the House of Peoples and the Republika Srpska Constitutional Commission

As from the adoption of the amendments to the Entity constitutions, the

House of Peoples of the Federation of Bosnia and Herzegovina and the Re-

publika Srpska Constitutional Commission (as established by the High Repre-

sentative) shall follow the principles contained in this document.

Interpretation of this agreement

The High Representative is the final authority in the interpretation of thisdocument until its full implementation by the parliaments of the entities.

While this agreement did not represent the best possible interpretation of the

Constitutional Court's ruling, or a complete catalogue of all the required

amendments, it offered an acceptable framework based on compromise. The

Republika Srpska party leaders who had signed the agreement, before return-

ing to Banja Luka to ensure the passage of the amendments by the National

Assembly, noted their objections over two provisions and the debate in the

Republika Srpska National Assembly started, added caveats and 'minor'

changes, and introduced new amendments contrary to the spirit of the Court's

decision.


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C h a p t e r 5 - M e c h a n i s m s t o p r o t e c t v i t a l i n t e r e s t s

i n B e l g i u m

Modern states with different constitutional peoples or with (significant) mi-norities often offer several mechanisms to protect the rights and freedoms of

the peoples they embrace. Sometimes it is just an enumeration of these rights

and freedoms that is reiterated and specifically guaranteed, such as the Euro-

pean Convention on the Protection of the Rights of Minorities, in other cases

there are specific clauses in the constitutions or laws that regulate the electoral

system in order to guarantee that all people have an equal chance to be elected

or to have representatives of their group elected. The guaranteed allocation of

a number of seats in parliaments is just one example; the proportional distri-bution of positions in appointed positions and in the (senior) administrative

posts is another way to share power between constituent peoples.

The Belgian institutional system is build around a complex system ofchecks-

and-balances to ensure on the one hand that the power-sharing between the

communities (and the regions) is guaranteed, and adhered to in practice, and

on the other hand to ensure that the (subjective) sentiments that one group

could be dominated by the other is not given a chance.

The successive reforms of the state, started in 1970, other than decentralizing

institutions and demarcating territorial units, have incorporated a series of

provisions in the Constitution of Belgium to protect the rights and freedoms

of all three linguistic groups.


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ARTICLE 54 GROUP VETO, ALARM-BELL PROCEDURE

In 1970, two language groups (French-speaking and Flemish) were distin-

guished in the Parliament, and an alarm bell procedure was established to

guarantee the protection of these language groups; linguistic parity was consti-

tutionally required for the composition of the national government. Every

law, with the exception of special and budgetary laws, may be challenged.

Three-quarters of the members of a language group, in either the Chamber or

the Senate, may pass a motion declaring that a bill or proposal threatens to

cause serious damage to relations between the communities. In such a case,

the procedure is suspended and the text is submitted to Cabinet (in which the

languages are equally represented) that must exercise a kind of political arbi-

tration.

Article 54: Alarm-bell Procedure

1) With the exception of budgets and laws requiring a special majority, ajustified motion, signed by at least three-quarters of the mem-

bers of one of the linguistic groups and introduced following the

introduction of the report and prior to the final vote in a public

session, can declare that the provisions of a draft bill or of a mo-

tion are of a nature to gravely damage relations between the

communities.

2) In this case, the parliamentary procedure is suspended and the motionreferred to the Council of Ministers, which, within thirty days, gives

its justified recommendations on the motion and invites the impli-

cated House to express its opinion on these recommendations or on

the draft bill or motion that has been revised if need be.

3) This procedure can only be applied once by the members of a linguis-tic group with regard to the same bill or motion.


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The constitution does however not explain what vital interests are and it is

left to at least three-quarters of the members of one language group to argu-

ment, which issues are of a nature to gravely damage relations between the communi-

ties.

The question of what vital interests are is closely linked with the question

what defines a nation, a people? Different dictionaries offer a glimpse at ele-

ments of the term: People:A body of persons composing a community, nation, ethnic

group, etcaccording to the Oxford Shorter Dictionary, which Nation is de-

fined as:A large aggregate of people so closely associated with each other by factors such as

common descent, language, culture, history, and occupation of the same territory as to be

identified as a distinct people, esp. when organized as a political state.

Neither definition offers an insight in what is of vital interest to the groups it

describes, a fact also recognized by the authors of Article 54 of the Belgian

Constitution.

The linguistic groups have however, invoked Article 54 only once, in a proce-

dure that was never brought to an end because of early elections over another

issue.

SPECIAL MAJORITY LAWS

In 1970 when the parliament was divided into language groups, a new type of

federal law was introduced; the Special Majority Law is required vote laws that

touch upon the constitutional rights of the Belgians to prevent the promulga-

tion of laws on the reform of the state against the desires or either of the

countrys linguistic communities. A Special Majority is defined as a two-thirds

of the vote in both Houses of Parliament (Chamber and Senate) subject to a quorum of the

two language groups and a majority of each language group in each Chamber. By requir-

ing a majority of each language group, the Constitution enshrines the idea of

joint management, on an equal footing, of the essential structural elements of

the Belgian state by the French-speaking and the Flemish-speaking communi-

ties.


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The requirement for a Special Majority applies to the (lengthy list) of princi-

ples outlined in the Constitution of Belgium all of these provisions relate to

the application of the constitutional principles of the structure of the state,

and their number was increased during the successive state reforms that di-

vulged more and more power from the st

comparing vital interest clauses in the constitutios of bih and belgium

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