Year XXXVII, Number 2, July 2024

Aleksa Nikolić
Lecturer, University of Belgrade Faculty of Law

Abstract. In this brief article, the author explores the issue of the (non)existence of the constitutional identity of Bosnia and Herzegovina. After a brief theoretical analysis of the concept of constitutional identity, the author identifies criteria for defining it in Bosnia and Herzegovina. In essence, the constitutional identity of BiH is composed of two entities (Republika Srpska and the Federation of Bosnia and Herzegovina) as well as three constituent nations (Serbs, Croats, and Bosniaks) and Others. In other words, the constitutional identity of Bosnia and Herzegovina comprises territorial federalism (entities) and non-territorial federalism (constituent peoples and others). Subsequently, the author examines whether the concept of constitutional identity is applied in BiH through the prism of analyzing the composition of the Constitutional Court of Bosnia and Herzegovina, drawing certain conclusions in this regard.

What is constitutional identity? A Theoretical approach

 “Latterly, during his presentation on the topic “National Constitutional Identity in front of the European Union” at an international scientific conference held at the University of Belgrade, Faculty of Law, at the end of May 2022, Professor of Constitutional Law from Sorbonne, Bertrand Mathieu, initiated a debate on constitutional identity and its understanding in Europe. After asserting that the main component of Greece’s constitutional identity is the Orthodox Church, Mathieu received a question from the audience: “What is the main component of Serbia’s constitutional identity?” He responded: “Probably Kosovo... and maybe the European Union (EU) ... after all, assess it yourselves, that’s why there are referendums.” (Nikolić 2024).”

It seems that the question of constitutional identity is far more complex and multifaceted than Bertrand Mathieu’s initial response might suggest. It cannot be simplified to such an extent, as various factors and indicators must be taken into account – not only legal but also political, sociological, historical, cultural, and so on… Only such an approach, even though it is often criticized in academia as subjective and unbalanced, is capable of revealing what lies “behind the Constitution,” or which “forces” influence its creator.

So, what is constitutional identity? The most prominent scholars in Constitutional law and Political Science worldwide have attempted to “decipher” what the best, most accurate, and most righteous definition of constitutional identity would be. Naturally, each of them arrived at a different conclusion, as their approaches and methodologies varied. For Michael Rosenfeld (2012), the concepts of constitutional identity range from focusing on the actual characteristics and provisions of the constitution – the system of power or the form of government in a specific case – to the relationships between the constitution and other relevant identities, such as national, religious, and ideological. Gary Jeffrey Jacobsohn (2010) thinks along similar lines, though his own definition of constitutional identity includes another crucial element – history. “The constitution acquires identity through experience,” he says, as it “represents the past of a state as well as the determination of society to overcome that past.” At last, authors like Pietro Faraguna (2017) consider that constitutional identity “serves as a cognitive tool to recognize the identity of a constitution despite all transformations, modifications and amendment that occurred in a given constitutional experience – constitutional identity despite differences. In this sense, for example, a constitution may remain the “same” as the one originally adopted, despite several amendments and interpretative transformations. Its self may not change, despite all textual and interpretative differences brought by decades or centuries of constitutional experience.”

Professors of Constitutional Law at the University of Belgrade Faculty of Law have attempted to define this theoretical question that has puzzled renowned figures in Constitutional law and political science for decades. Scholars like Tanasije Marinković note that constitutional identity consists of basic constitutional values and can be uncovered through the analysis of old historical constitutions, as certain legal norms remain in force even if they were not explicitly written in a constitution. Vladan Petrov “discovers” constitutional identity in the constitutional text, defining it as a collection of “general and specific constitutional principles, as well as constitutional values.” In other words, it is the “constitutional core” of a state, the foundation upon which the constitutional model of a state rests.

Constitutional identity of Bosnia and Herzegovina. A Practical approach. 

If we consider constitutional identity as a set of fundamental constitutional values contained in the constitution of a country, the question arises: what constitutes the constitutional identity of Bosnia and Herzegovina (if it exists at all)? In a very simplified manner, it seems to be the “binding fabric” from which Bosnia and Herzegovina is woven – the existence of two entities (Republika Srpska, RS, and the Federation of Bosnia and Herzegovina, FBiH) and three constituent peoples (Serbs, Croats and Bosniaks) (see Dayton Constitution of BiH, Preamble and Art. I/3). The existence of entities with full, original powers, as well as guaranteeing the rights of constituent nations, is the only guarantee for the survival of post-Dayton Bosnia and Herzegovina. Therefore, the constitutional identity of Bosnia and Herzegovina consists of Republika Srpska (RS) and the Federation of Bosnia and Herzegovina (FBiH), which are also (some of the) signatories of the Dayton Peace Agreement, as well as Serbs, Croats, and Bosniaks as constituent peoples in Bosnia and Herzegovina, along with the Others, according to the earlier judgments of the European Court of Human Rights (ECtHR) dictate.[i] In other words, the constitutional identity of BiH  consists of elements of territorial (RS and FBiH) and non-territorial federalism (Serbs, Croats, Bosniaks and Others). 

Constitutional identity and Constitutional Court of BiH. Requiem for a Dream?  

If we perceive constitutional identity as a set of fundamental constitutional values contained in the constitution of a country, the question arises:  why isn't the Constitutional Court of Bosnia and Herzegovina composed of those who best represent the constitutional identity of BiH? Why doesn't the Constitutional Court of BiH embody the constitutional identity of the country - representatives of RS and the FBiH from the ranks of all three constituent peoples (Serbs, Croats, and Bosniaks), as well as Others (as earlier judgments of the European Court of Human Rights (ECtHR) dictate), but includes international judges? The answer to this question only partially “lies” in the constitutional text itself. The Constitution of BiH in Article VI/1 stipulates that the Constitutional Court of BiH consists of nine members – four appointed by the FBiH and two by RS. The remaining three members are appointed by the President of the ECtHR, following consultations with the Presidency of BiH. However, this decision-making method has been causing a crisis in BiH from the beginning, often leading to the overvoting of Serbs and Croats, as well as unconstitutional and anti-Dayton actions. This has culminated in the last two years with the adoption of the Law on Non-Implementation of Decisions of the Constitutional Court of BiH in Republika Srpska, as well as the departure of Serbian judges from the Constitutional Court of BiH. The Constitutional Court of Bosnia and Herzegovina is currently lacking one judge from the Croatian ethnic group, and, by 2026, all “domestic” judges are expected to retire, leaving only foreign judges in its composition. What is the legitimacy of an institution where only judges from Germany, Switzerland, and Albania are present instead of “domestic” judges? Is there any country in the world where the guardian of the constitution is a “foreigner”? This absurdity should be addressed by changing the method of selection and composition of judges in the Constitutional Court of Bosnia and Herzegovina. This has been repeatedly emphasized as an obligation of Bosnia and Herzegovina towards the EU, especially now that Bosnia and Herzegovina has been given the green light to start negotiations with the EU (see Key Priority No. 4, European Commission Report 2023, SWD (2023) 691 final). Mischievous politicians in BiH argue that such activity would constitute an unconstitutional move, demonstrating a fundamental lack of understanding of their own state’s constitution. The Constitution of BiH in Article VI/4 allows the Parliamentary Assembly of BiH, five years after the first appointment of foreign judges, to legislate a different method of selecting these three judges. Therefore, the Constitution of BiH itself provides the possibility of protecting the constitutional identity of BiH by placing within legal frameworks the possibility of changing the method of selection and composition of the Constitutional Court of BiH.

It seems that in Bosnia and Herzegovina, there are attempts to change the constitutional architecture of the country – its foundations are being altered, which could lead to the collapse of the structure itself. However, for it to survive, it is necessary to return to strengthening its foundations, and that means respecting the Dayton Constitution of BiH. In this way, the constitutional identity of Bosnia and Herzegovina, consisting of Republika Srpska and the Federation of Bosnia and Herzegovina, along with all their Daytonian competencies, including the three constituent peoples and Others in BiH, is preserved. Only such Bosnia and Herzegovina fulfills the fundamental values of the EU outlined in Article 2 of the Treaty on European Union (TEU), and only such Bosnia and Herzegovina has a future in the EU.

References:
- Aleksa Nikolić, “Čuvari ustava“, Arhiv za pravne i društvene nauke 1/2024.
- Gary Jeffrey Jacobsohn, Constitutional Identity, Cambridge (Mass, USA), 2010.
- Michael Rosenfeld, “Constitutional Identity”, The Oxford Handbook of Comparative Constitutional Law (eds.Michael Rosenfeld, András Sajó), Oxford, 2012.
- Pietro Faraguna, “Constitutional Identity in the EU – A Shield or a Sword”, German Law Journal 7/2017.
- Tanasije Marinković, “Ustavni identitet vidovdanske Jugoslavije”, Sto godina od ujedinjenja  – Formiranje   države i prava (eds. Boris Begović, Zoran Mirković), Belgrade, 2020.
- Vladan Petrov, “European Versus National Constitutional Identity in the Republic of Serbia: A Concurrence or Unity”, Constitutional Identity and European Union Axiology – Perspectives of Central European States (ed. Grzegorz Pastuszko), Warsaw, 2022

[i]ECtHR, Sejdić i Finci v. Bosnia and Herzegovina, No.  27996 and 34836/06, 22.12.2009; ECtHR, Zornić v. Bosnia and Herzegovina, No. 3681/06, 15.07.2014; ECtHR Pilav v. Bosnia and Herzegovina, No. 41939/07; ECtHR Kovačević v. Bosnia and Herzegovina, No. 43651/22.