Suddenly Royalists: The HDZ’s Belgian Fantasy

In Bosnia and Herzegovina references to Belgium are increasingly frequent. These references, however, bear little resemblance to the actual Kingdom of Belgium, or its constitutional and electoral arrangements which chiefly concern those who invoke the country. Much the same is true of Bosnia and Herzegovina itself. When Dragan Čović, Željana Zovko, and Gordan Grlić-Radman speak of ‘electoral reform’ in this country, they do not refer to the existing legal order, the decisions and opinions of the Constitutional Court, the European Court of Human Rights, the Venice Commission, or the EU Commission. This is because the Bosnian and Croatian HDZs have developed over the past decade a parallel political lexicon. One in which words, which have very definite meanings, are given entirely new meanings, which do not comport to any previously established definition of the same. 

This article is also available in Bosnian.

For example, “legitimate representation”. The term “legitimate” Meriam-Webster tells us means “lawfully begotten,” as in, obtained through the orderly dispensation of the law. “Representation” means “someone or something that represents,” i.e., an electorate, an organization, a cause, an idea, etc. Thus, legitimate representation should, in the political context in which it is deployed, mean the practice of representing someone in accordance with the law. 

Except the HDZ means precisely the opposite, i.e., Željko Komšić has been elected in accordance with all relevant constitutional and legal provisions, but we still maintain that he does not represent the Croat community. Why? Because he was not chosen by our voters. Is there a legal obligation that the Croat from the Federation entity serving on the Bosnian state presidency be elected purely by the voters of the HDZ? No. Is there an obligation that she or he be elected exclusively by Croats? No. Would such a hypothetical directive even be in line with the European Convention on Human Rights, which is embedded directly into the Bosnian constitution? Almost certainly not. 

Or let us consider the term “constituent people,” a term that has no settled definition under Bosnian law but nevertheless represents an important legal category in the country’s constitutional regime. In practice, we know that the term refers to the country’s Bosniak, Serb, and Croat communities. But we do not know on what lawful basis those groups are afforded rights to representation that other citizens of Bosnia and Herzegovina lack, i.e., how is it that only a Bosniak, Serb, or Croat can be elected to the state presidency and so on. The inability of the Bosnian constitutional and legal regime to lawfully account for the same is precisely why the European Court of Human Rights has since 2009 consistently ruled against the Bosnian state in a series of landmark civil rights cases concerning discrimination of the so-called “Others” under the country’s existing constitutional and electoral arrangements.

Now, the English meaning of the term constituent peoples is especially important in this regard because there is no official translation of the Bosnian constitution into the country’s three official languages. Because no official local-language text was ever adopted by the relevant bodies, the English text is the authoritative original for interpretation of the constitution (and the Dayton Peace Agreement). The term “constituent” here means one who constitutes, as in one who makes up a part of a whole. As all Bosnian citizens are equal under the law and are afforded the right to elect and be elected (rights guaranteed specifically because the European Convention on Human Rights and the International Covenant on Civil and Political Rights apply directly to Bosnia and Herzegovina), it stands to reason that all citizens of Bosnia and Herzegovina must be part of constituting the Bosnian state. 

This interpretation also syncs up with the preamble of the constitution, which frames the text as the will of “Bosniacs [sic], Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina”. The traditional reading of that passage has been that Bosniaks, Croats, Serbs, Others, and citizens are distinct categories. Those categories may be distinct as names, but no fundamental rights can follow (or be halted from following) on this purely etymological distinction once we concede the above, and we must. Because that is precisely what the justices in the Zornić decision ruled: that a citizen refusing all ethnic categories was still afforded equal democratic rights in Bosnia and Herzegovina. That is because citizenship is the source of all political rights in Bosnia and Herzegovina and in every state party to the European Convention on Human Rights. 

In other words, a more accurate reading of the above preamble is that Bosniaks, Croats, Serbs, and Others have all the rights subsequently enumerated in the constitution because they are citizens. Sub-groups within the state may then pursue the expression and practice of additional privileges, i.e., to be recognized as a group, but the same can never come at the expense of any other citizen’s fundamental rights. Thus, for example, the Croat community in the Zenica-Doboj canton can demand that their culture, history, and language be incorporated into the local school curriculum, but they cannot ask for non-Croats to be denied the right to participate in free and fair elections because their numerical superiority may cause a result that this community dislikes. Your preferred candidate losing an election is not a threat to one’s fundamental rights, after all.

The alternative reading is the one advanced by the HDZs: the constituent people are a special category of citizens who have special rights and privileges that are actively denied to others. That is preposterous on its face and in direct contravention of both the prescriptions of the Bosnian constitution and the European Convention on Human Rights, and the jurisprudence that has followed from both. 

That, finally, brings us to ‘the Belgian model’. Which Belgium do the HDZs have in mind when they speak of a Belgian model for Bosnia and Herzegovina? 

Certainly not the real-world Belgian state. Because if its constitutional and electoral regime were applied in Bosnia and Herzegovina it would mean, for example, the establishment of a constitutional monarchy and abolition of an ethnically-constituted executive; constitutional protections for “ideological and philosophical minorities” (Article 11, Constitution of the Kingdom of Belgium); the sourcing of all political rights from a single (Bosnian) nation (Article 33) and thus the elimination of the concept of constituent peoples; far weaker blocking mechanisms (Article 54) than Bosnia and Herzegovina’s existing vital-interest and entity vetoes; the election of members of the House of Representatives on a genuinely proportional basis (Article 62) and the removal of ethnic criteria for the election of the same (Article 64); that Bosnia and Herzegovina would gain a functional mechanism for dissolving a government that has lost the confidence of the majority of its members (Article 96); and that only the two largest ethnic groups in the country have guaranteed seats in cabinet (Article 99).

What would the HDZs gain with a Belgian model? They clearly think that the country’s language-based provisions would allow the party to maintain, or more likely expand, a sectarian regime, without fear of blowback from Strasbourg. That is because the European Court of Human Rights has upheld key parts of Belgium’s power-sharing regime on the grounds that it shapes how citizens are represented but, unlike Bosnia and Herzegovina, bars no one from office (Mathieu-Mohin and Clerfayt v. Belgium). So, the nationalist hardliners in Zagreb and Mostar think a Belgian model would deliver them a legally-sound sectarian system.

The problem is the HDZ are convinced its voters would be like the Dutch or French electorates in Belgium. But they would not be because the Croat community is the smallest of the three major ethnic blocs in Bosnia and Herzegovina, and thus its Belgian parallel is the German-speaking Community, not the Dutch or French. This would mean that Croats in Bosnia and Herzegovina, including those in the Federation entity, would lose significant political and constitutional authorities which they currently enjoy through the cantons (and the Federation entity, and at the state-level). Instead, Croat-majority cantons would possess only the authorities explicitly devolved to them by a now truly Bosniak-dominated Federation entity and/or a Bosniak- and Serb-dominated Bosnia and Herzegovina, rather than the present arrangement, in which they enjoy near-total political parity with the two other groups.

Moreover, Belgium’s complex constitutional regime has several interlocking layers of representation which it affords its citizens, and these are not nearly as cleanly sequestered as Bosnia and Herzegovina’s present ethno-territorial regime. Belgium has three communities, and three regions, but whereas Flanders fused both its community and regional parliaments, the Francophone community did not (i.e., the “French Community” and Wallonia are distinct entities). So, Belgium does offer the Croat nationalist camp a model Bosnia and Herzegovina, theoretically, lacks: a government that follows an ethnic (‘linguistic’) community rather than mapping onto a single territory; what HDZ officials themselves have referred to as a ‘floating electoral district’. But such a “Community” model is what the Germans of Belgium have. Which means, in practice, a trade, one which the HDZ BiH has to date never been asked to engage in. Trading robust autonomy over matters of language, education, and culture in exchange for their near-total exclusion from the center.

So, once again, what the HDZs say they want – the Belgian model for Bosnia and Herzegovina – does not comport with the constitutional realities of the Belgian state. In fact, if anyone in Bosnia and Herzegovina would genuinely benefit from a (actual) Belgian model, it would be those who wish to see a more integrated, functional, and (non-ethnically) representative constitutional regime in the country. And were they to articulate those demands as policy, we would quickly see the HDZ BiH and the HDZ in Zagreb come out against them. As they have come out against every effort since 2009 to realize the Sejdić-Finci, Zornić et al rulings.

Still, this exercise is not without its merits. What the HDZs’ purported support for the Belgian regime reminds us of is that Bosnia and Herzegovina is the most decentralized and dysfunctional constitutional setup in Europe. And virtually any reform modeled on any other actual democratic system on the continent would both be an improvement and mean a loss of power for the HDZ BiH.