Legal framework analysis and recommendations

By Emina Ema Ibišević and Nejra Vreto

Human rights based constitution

Decades after the European Court of Human Rights ruled provisions of the Constitution of Bosnia and Herzegovina discriminatory based on ethnic and nationalist divisions, and minority violations, the status quo remains. While numerous reports demonstrate the failure of the Constitution and the Constitutional Court to protect and promote fundamental human rights, no changes have been made. Although Bosnia and Herzegovina has ratified agreements and treaties concerned with the protection of different aspects of human rights, there are massive gaps in the implementation of human rights on both individual and collective level. The importance of international conventions is undeniable, but the Venice Commission states that is “understandable that the people (of a state) wish to have their own catalogue of human rights which would reflect a consensus within the country on human rights protection”. This essay argues that Bosnia and Herzegovina should adopt a rights-based approach to constitutional reform to be more democratic, accountable to its electorate, and to hold violators liable for their actions. 

The constitution as the highest law of the country creates a link between political institutions and the society where citizens can freely, without the fear of those in power, demand fundamental freedoms and expect those to be protected by the state. As such, the constitution acts as a pillar of stability, promotes democratic transformation, and prevents the rise of post-conflict tensions. Neuman stated that “constitutional rights of individuals derive legitimacy from the direct or indirect popular consent to the constitutional text”. Meaning that a constitution acts as a ‘social contract’ between the people and the state, dictating the organization and obligations of the State while disabling opportunities for an authoritarian takeover. That being said, “it is not only important for constitutions to spell out the standard rights that everyone enjoys, but it is also important for citizens to be aware of them to better understand when their rights are being violated”. Entrenching these human rights in a constitution, then, has a dual role, both symbolic and practical. 

Symbolically, when a state decides to constitutionalize human rights which are granted by a variety of international instruments, it sends a message that those rights are fundamentally important on the national level. Although international agreements have precedent over a state’s constitution, it is still imperative that those rights are fortified on the national level, too. Furthermore, when human rights are ingrained in a constitution it gives citizens a recourse to seek justice when their rights are violated. Still, entrenching human rights in a constitution does not guarantee their implementation and does not prevent human rights abuses, but it gives victims a primary legal foundation to assert their rights. This is especially important when citizens are prejudiced against international norms and consider them to be a ‘Western’ design. Logistically, too, it is easier for citizens to fight for their rights in their own constitutional courts, rather than to seek justice at international courts. Otherwise, the fight for rights is costly, protracted, and without a guarantee of a resolution. The perfect example of the inefficacy of such fights is Sejdic and Finci v. Bosnia and Herzegovina, where twelve years after ECtHR found Bosnia and Herzegovina in the breach of Protocol 12 of the European Convention on Human Rights, providing the right to equal treatment and non-discrimination, the ruling is yet to be implemented. 

Finally, there are multiple, practical and real-life consequences when the constitution and domestic law are not in line. To understand this, we will look at the example of Bosnia and Herzegovina and the discrepancies between rights safeguarded by the Constitution and laws dictated by domestic law. Article II of the Constitution of Bosnia and Herzegovina states that the State “shall ensure the highest level of internationally recognized human rights and fundamental freedoms” and that the European Convention for the Protection of Human Rights and Fundamental Freedoms shall have priority over all other law. However, when enumerating rights many fundamental rights and freedoms are lacking or are not recognized in the Constitution. Most notably, there is no right and freedom to gender expression and sexual orientation, and there is a massive gap in the protection of women’s and girl’s rights. It is the imprecise and ambiguous language of the Constitution itself that creates discrepancies with legally binding regulations of the State.

For example, the Constitution states that everybody shall enjoy “the right to marry and to found a family”, but the Family Law of the Federation BiH clearly states that marriage and family is a union/community between a man and a woman. On the other hand, following Oliari and Others v. Italy, ECHR ruled that the Convention itself did not impose an obligation of governments to grant same-sex couples access to marriage, each state in conjunction with Article 8 of ECHR has to “ensure that the applicants (citizens) had available specific legal framework providing for the recognition and protection of their same-sex unions”. Additionally, Article 8 of ECHR recognizes that families are not merely based on marriage and that other types of relationships are included, too. It is clear that in Bosnia and Herzegovina there are three different ways to interpret the right to marry and the right to family. By some interpretations, same-sex relationships in Bosnia and Herzegovina have the right to a union (if not marriage) and the right to form a family, but the members of the LGBTQ+ community are still denied those rights.

This example shows how domestic law, such as Family Law, can take a precedent over the Constitution which leads to grave violations of human rights. This is why going forward with proposing reforms and amendments to the Constitution of Bosnia and Herzegovina, it is imperative to take a rights-based approach. That is the only way to ensure that the vital interests of citizens, regardless of their ethnicity, nationality, gender, sexual orientation, age, (dis)ability, are promoted and protected and that the State is held accountable when it contributes to the systematic discrimination of its citizens.   

Gender based constitution

In the times of inequalities and rising challenges in the modern world and political spectrums, it is inevitable to discuss the relations of gender and politics, in almost every aspect of human lives. Gender equality (GE) has always been challenged by the conservative societies and their ‘one-sided’ lenses, making it more difficult to be approached and understood by the ordinary masses. Equal opportunities and equal benefit distributions for both genders should not be considered as a privilege or remained questioned for the decades.

 The concept of gender equality emerged first in 1948 in the Universal Declaration of Human Rights (UDHR), which prohibits discrimination on the basis of sex. However, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted by the United Nations General Assembly (UNGA) in 1979, is often described as an international bill of rights for women. Although the notion of gender equality emerged earlier, it is the Platform for Action at the United Nations Fourth World Conference on Women in Beijing in September 1995 that provided a global mandate for change.

Gender equality is not only one of the basic human rights, universally recognized, but also one of the prerequisites for democratic elections in the sake of enhancing legitimacy and number of women representatives all over the world. Its development is of crucial importance for the future generations and consequences that they will have to put up with as a collateral damage of traditions and patriarchal societies. Simply put, fair and free politics as some of the basic premises of democracy require equal opportunities and equal achievements for the equal representation in politics.

Gender (in)equality remains one of the burning issues within the BiH society and one of the most important human rights pillars for equal representation, opportunities and distribution of benefits on the gender based level. Regardless of various gender mechanisms for the protection such as laws, procedures, all from international down to national laws which are differently applied and interpreted from entities and cantons. Even after the ratification of many international Conventions for gender equality and women’s rights as well as women’s empowerment, it remained status quo for decades. 

European Court of Human rights has declared Bosnian Constitution as discriminatory, based on ethnic division, nationalism, segregation and minorities’ violation. This has created a huge distrust in the country’s protection mechanisms and the number of human rights violation cases have risen throughout the years against the country. Number of those cases were mostly related to the citizens’ rights to run for office and have equal rights in the electoral processes, however even after the convictions, twelve years later – it remained status quo.

Since there are multiple layers of discriminative grounds, Human Rights Watch has estimated that almost half million of BiH citizens are discriminated per se, making around 12% of population, that are currently prohibited from being equally treated and elected, to run for office. All this based on their declared ethnicity, religion, territory where they live or even not being declared by any of the three-constituent people – mostly declaring as “Bosnian and Herzegovinian” is de facto and de jure discriminatory.

Fostering gender equality is, from the EU perspective, connected not only to development and human rights, but also to the act of achieving peace and security. Adopted by the Council in December 2008, the Comprehensive Approach to the EU Implementation of the United Nations Security Council Resolutions (UNSCRs) 1325 and 1820 on Women, Peace and Security recognizes the close links between issues of peace, security, development and gender equality. 

The Constitution of Bosnia and Herzegovina, Annex IV of the Dayton Peace Agreement, recognizes the human rights and fundamental freedoms, together with the rights under European Convention of Human Rights, being it above the national constitutional rights. Article IV about non-discrimination says the following: 

The enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex I to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 

   Hereby we can see that there is no clear mentioning of the term gender, even though Constitution should be the highest legal document of the state, when it comes to gender based provisions, a legal support should be found somewhere else. In some aspects, Bosnia and Herzegovina is even a leader in the region of Southeast Europe in regard to gender equality. Bosnia and Herzegovina was the first country in the region to adopt Gender Equality Law (2003), which enabled formation of the first gender mechanisms in Bosnia: FBiH and RS Gender centres and the BiH Agency for Gender Equality (2004). Progress of Bosnia and Herzegovina in respecting and promoting gender equality is highlighted in a series of international commitments and in Bosnia and Herzegovina’s legal and policy frameworks. Normative achievements that influence the institutional practice in promoting gender equality in BIH include Gender Equality Law (GEL), amendments to the Election Law instituting candidacy quotas, ratification of the Istanbul Convention and adoption of the strategic framework for implementation of the Convention, adoption of the Gender Action Plan and Action Plan for the implementation of UNSCR 1325, both expected to be revised in the coming period.

             According to the Gender Equality Law in Bosnia and Herzegovina adopted in 2009 ‘sex’ also encompasses ‘gender’ identity:  Sex represents biological and psychological features that differ human beings to persons of male and female sex, and also denotes gender as sociologically and culturally conditioned difference between persons of male and female sex, and is related to all roles and features that are not conditioned or determined exclusively by natural or biological factors, but are product of norms, practice, customs and tradition and are changeable through time. (Article 9.a ). 

            Furthermore, Article 15. explains the gender balance in the public life: Bodies of the state and local self-governance, managerial bodies of companies, political parties and other non-profit organizations shall ensure and promote balanced representation of men and women on the process of management and decision-making. In order to achieve goals set in Paragraph 1 of this Article, competent authorities shall undertake any interim measure to be used to improve gender misbalance in government bodies of all levels, and these measures shall be revised periodically. In order to ensure equal representation of genders, percentage of women in government bodies shall not be lower than 50%, including the judiciary and the executive, as well as all other public offices, including participation in bodies representing the state internationally.

    Therefore, this could be included in the Constitution of Bosnia and Herzegovina in the Article II: Human rights and fundamental freedoms, 4th Non-discrimination clause should be changed into the following: 

The enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex I to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, gender, sexual orientation, color, language, religion, political or philosophical affiliation, national or ethnic, social origin and association with a national minority, property, birth, marital status, economic or social, occupation, education level, disability, pregnancy, or that have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on equal rights of all people. 


Suggestion was made with the inspiration of the following example of Constitution of Bolivia:

*Constitution of Bolivia, 2009 
Article 14. II. The State prohibits and punishes all forms of discrimination based on sex, colour, age, sexual orientation, gender identity, origin, culture, nationality, citizenship, language, religion, ideology, political or philosophical affiliation, marital status, economic or social, occupation, education level, disability, pregnancy, or that have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on equal rights of all people.

Another change we suggest is the addition of catalogue of human rights in the III section of Enumeration of Right is:

All persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and fundamental freedoms referred to in paragraph 2 above; these include: 

  1. a)  The right to life.
  2. b) Equal rights between man and women

*Constitution of Turkey, 1986
Article 10(2). Men and women have equal rights. The State shall have the obligation to ensure that this equality exists in practice. 

  1. c)  The right not to be subjected to torture or to inhuman or degrading treatment or

punishment.

  1. d) The right not to be held in slavery or servitude or to perform forced or compulsory          labor.
  2. e)  The rights to liberty and security of person.
  3. f)  The right to a fair hearing in civil and criminal matters, and other rights relating to

criminal proceedings.

  1. g)  The right to private and family life, home, and correspondence.
  2. h)  Freedom of thought, conscience, and religion.
  3. i)  Freedom of expression.
  4. j) Promote woman’s rights through affirmative action

*Constitution of Sudan, 2005
s32(2). The State shall promote woman’s rights through affirmative action.

  1. k)  Freedom of peaceful assembly and freedom of association with others.
  2. l) Equal participation in public life and political office (50%)
  3. lj) The right to marry and to found a family with the right of equal sex marriages.
  4. m)  The right to property.
  5. n)  The right to education.
  6. nj) The right to liberty of movement and residence.


Bibliography:

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“Bosnia and Herzegovina: Ensuring the political participation of minorities,” Minority Rights Group, 20 November, 2016. https://minorityrights.org/law-and-legal-cases/finci-v-bosnia-and-herzegovina/.

Constitution of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina 25/09. Article II/4 Retrieved from: http://www.ccbh.ba/public/down/USTAV_BOSNE_I_HERCEGOVINE_engl.pdf  Accessed on 30.03.2021.

European Commission for Democracy Through Law (Venice Commission), Preliminary Opinion on the Draft Amendments to the Constitution of Bosnia and Herzegovina, Council of Europe. Strasbourg, France: 2006. https://www.venice.coe.int/webforms/documents/?pdf=CDL(2006)027-e.

European Commission, Gender Country Profile for Bosnia and Herzegovina, Project No. 2013/333302/1. European Union, June 2014.

European Commission, Instrument for Pre-accession Assistance (IPA II) 2014-2020. Bosnia and Herzegovina EU Gender Equality Facility. 2018. Pg.4

Graham Paul, “More than just words: Why constitutions need to include human rights,” Young African Leaders Initiative. https://yali.state.gov/more-than-just-words-why-constitutions-need-to-include-human-rights/.

Guide on Article 12 of the European Convention on Human Rights: Right to Marry, Council of Europe, 31 December 2020.

Human Rights and Constitution Making, United Nations Office of the High Commissioner. New York: United Nations Publications (2018). 

Neuman Gerald L. “Human Rights and Constitutions in a Complex World,” Irish Jurist, 50 (2013): 1-10. 

Porodični zakon Federacije Bosne i Hercegovine, Službene novine Federacije BIH, broj 35/05 (20.06.2005). https://advokat-prnjavorac.com/zakoni/porodicni_zakon_Federacije_BiH.pdf

United Nations Development Programme, Women’s Rights in Constitutions, 2016

World Bank Institute, Parliamentary Centre. Parliamentary Oversight of Gender Equality.

Zivanovic Maja, Bosnia Constitution Still ‘Outrageously’ Violates Minority Rights – HRW, 2019 Retrieved from: https://balkaninsight.com/2019/12/13/bosnia-constitution-still-outrageously-violates-minority-rights-hrw/ Accessed on 29.03.2021.