POWER SHARING BASED ON ETHNIC SOVEREIGNTY LEADING TO “ETHNIC DEMOCRACY”

The effect of the creation of “ethnic homelands” through federal arrangements is additionally strengthened by a system of power sharing between the various groups. The institutional recognition of these groups is seen as a necessary “correction” to liberal democracy in a context where ethnicity is an important factor.

On the State level, the parity of the three major groups, the “constituent peoples,” and the equal participation of their representatives in government are guaranteed through the tripartite Presidency and the rotation of its chair, the requirement that ministers and deputy ministers must not be of the same group, and the prescription that no more than two-thirds of the members of the government can be from the FBH.²⁷ As in the Federation, the bicameral Parliamentary Assembly of the State is comprised of a House of Representatives and a House of Peoples. The forty-two representatives are elected in separate caucuses: one-third by the population of the Republika Srpska, two thirds in the Federation. This scheme is repeated for the House of Peoples; five members are delegated by the National Assembly of the RS and ten members by the FBH. The representation of all three constituent peoples is extended to the chair of the two parliamentary chambers with a rotating system of one chair and two vice-chairs.

Thus, the Bosnian system of power sharing is based on the principle of parity in the representation of the “constituent peoples.” By contrast with the theoretical model of power sharing, according to which proportionality should be the basic standard of political representation, public service, appointments, and the allocation of public funds, the Bosnian system excludes minority representation and participation: neither the constitution nor the Dayton Peace Accord define roles for citizens who do not belong to one of the three peoples or who are of mixed ethnic heritage.

A high degree of autonomy for the groups, especially on issues that are not of common concern, is guaranteed by the federal system, which assigns most of the responsibilities traditionally related to “statehood” (such as responsibility for the military, the police, and so on) to the Entities. However, the lack of the political will to do anything that could strengthen the common institutions of the State contradicts the basic assumption on which consociational systems are founded, namely, the co-operation of the elites.

A minority veto is the ultimate weapon for the protection of essential group interests in case normal consultation procedures fail. One indication of the “institutionalized mistrust” in Bosnia is that there are three different kinds of veto mechanisms. All legislative decisions need to be approved by both chambers of Parliament. Decisions are generally taken by a simple majority vote, but a quorum is required for action: in the House of Representatives a majority has to be present, and in the House of Peoples at least nine members must be present, three from each of the constituent peoples. However, a kind of suspensory veto can be invoked by the representatives of each Entity: if cross-community approval by at least one-third of the deputies from each Entity cannot be achieved, the chairs of each House are obliged to present a rewritten draft within three days. If it fails to win approval, a simple majority is sufficient for the adoption of the decision. The suspensory veto can turn into an absolute one if in the second voting procedure two-thirds of the members representing one Entity vote against the decision (article IV.3d).

In addition, each of the constituent peoples can block any decision in the House of Peoples with a declaration that an issue touches on a “vital interest.”²⁸ If a majority of another group challenges the vital-interest statement, a Joint Commission (with one member selected by the delegates of each ethnic group) is established to work out a compromise. If no compromise can be achieved within five days, the Constitutional Court determines whether a vital interest has been affected (article IV.3f). Of course, this practice leaves a large number of unresolved political controversies to the Constitutional Court.

This complex institutional design for legislation, budgetary issues, the ratification of international treaties, and coordination with the Entities is complicated by the extensive de facto veto powers of the Presidency. Decisions in the Presidency have to be taken unanimously (article V.2c), but this is often impossible, since the institution is composed of three representatives elected independently with no obligation to function as part of a coalition. In the event of disagreement, decisions might be taken by majority vote, but at the risk of an appeal to the Parliament of the relevant Entity by the outvoted member of the Presidency. The support of a two-thirds majority of either the National Assembly of the RS or the FBH’s House of Peoples can block the majority decision by the Presidency, thus in effect creating a veto right for each member of the Presidency.

In sum, the Bosnian model of power sharing involves the institutionalization of ethnicity in all its main elements: direct and separate election of the members of the Presidency, the division of the electorate into groups corresponding to the populations of the Entities, numerous and invasive veto rights, broad autonomy for the Entities, and their decisive influence in the common institutions of the State. Thus, it is appropriate to characterize the Bosnian federal systems as based on “ethnic sovereignty” instead of popular sovereignty.²⁹