The proposed Constitution of the Republika Srpska, if approved, must align with the Constitution of Bosnia and Herzegovina, as well as the rulings of the state Constitutional Court and the High Representative.

This assertion was made by legal expert Davor Trlin in an interview with Radio Free Europe (RFE).

Currently, the removal of the Council of Peoples from the entity Constitution and the establishment of Banja Luka as the capital of Republika Srpska (RS) are the only confirmed aspects of this legal document.

Trlin highlights that any constitutional modifications should not diminish the institutions and mechanisms that safeguard human rights, which would occur if the Council of Peoples were eliminated.

“The decision U-5/98, often referred to as partial decisions, pertain to the constituency of peoples, leading to the formation of the Council of Peoples. It is crucial that discrimination against constituent peoples does not persist based on the territories they inhabit,” stated Trlin.

He asserts that neither the shift of the capital from Sarajevo to Banja Luka nor the abolition of the death penalty is contentious, as the latter is also a mandate for the RS.

According to Trlin, the Council of Peoples of RS should be involved in both the amendment of the existing Constitution and the drafting of a new one.

At the Bonn conference in 1997, the Peace Implementation Council (PIC) concluded that the Constitutions and all laws of the entities must conform to the Constitution of BiH.

The council also emphasized that “any provisions in the entity Constitutions that discriminate against members of any ethnic group are inconsistent with the Constitution of BiH.”

Who initiated the discussion about the new Constitution?

The announcement for the potential adoption of a new Constitution was initially made by RS President Milorad Dodik during an interview with the RS public service on February 28th.

Dodik specified that he “would not contradict the Constitution of Bosnia and Herzegovina.”

In this manner, Dodik continues to shape BiH according to his requirements, following last week’s parliamentary approval in RS of several unconstitutional laws, including an enactment that nullifies the jurisdiction of the Court and Prosecutor’s Office of BiH within the territory of RS, effective March 6.

The Council of Peoples serves as a specialized control body, composed of three eight-member caucuses representing the constituent peoples of BiH, along with one four-member caucus for Others.

This body is empowered not only to pass laws but also to protect the “vital national interest” of Serbs, Bosniaks, and Croats, which encompasses their right to adequate representation in governance, as well as matters concerning education, religion, and language.

Established in 2003, the Council was founded based on a prior decision from the Constitutional Court of BiH regarding the constitutive nature of the peoples, mandating representation for all three in the legislation of both entities.

Caution is necessary

Igor Crnadak, head of the opposition Party of Democratic Progress (PDP) parliamentary group and a member of the Committee on Constitutional Affairs, advises caution on this issue.

“Our primary concern is the Dayton Agreement, and we must take care not to jeopardize the protective mechanisms and the constitutional and legal positioning, essentially a state within a state for Republika Srpska,” remarked Crnadak.

While he refrains from predicting the outcome of a vote in the Assembly should it occur, he believes that modifications are necessary.

“Certainly, there’s no doubt that some aspects need to evolve; some have already been surpassed, while others have become outdated. The issue lies in how and when these changes should be made,” assessed Crnadak.

He noted the current situation in BiH as turbulent and unpredictable.

“With the unilateral initiation of these discussions, the significant power that Republika Srpska holds under the Dayton framework is at risk. I urge great caution in this matter,” he added.

Discussions on the new Constitution

On March 5th, government representatives convened in Banja Luka to discuss potential constitutional changes.

Though it was suggested that a Draft Constitution might be presented, Nenad Stevandić, President of the RS National Assembly, clarified during a press briefing that only potential amendments or the creation of an entirely new Constitution were addressed.

He indicated that further discussions will occur soon with political party leaders in the RS, along with representatives from the RS Academy of Sciences and Arts and distinguished legal experts.

“Let’s open this issue, assess the approach, gauge interest, and identify common problems. Our Constitution has seen numerous amendments and, from that perspective, is dysfunctional,” said Stevandić.

However, out of the opposition representatives, only Draško Stanivuković, PDP leader, agreed to attend the constitutional changes meeting, while leaders of the Serbian Democratic Party, the Justice and Order List, and the People’s Front declined the invitation.

How is the Constitution of the Republic of Srpska amended?

The last amendment to the RS Constitution occurred in 2011, which allowed a maximum of four vice presidents in the RS National Assembly instead of two.

The legal framework for creating a new Constitution is not clearly defined within the RS legal system, although the Constitution stipulates that “constitutional and legislative power shall be exercised by the National Assembly.”

To amend the Constitution, a proposal may be submitted by the President of the RS, the Government, or at least 30 members of the RS Assembly.

A simple majority of MPs must vote on the proposal, leading to the approval of a Draft that will undergo public discussion.

Once the debate concludes—regardless of its duration—the proposed changes will be voted on.

“A constitutional change is ratified if at least two-thirds of the total number of deputies and a majority of members of the Council of Peoples from each constituent group and Others support it,” as stated in the RS Constitution.

Dodik and the coalition surrounding his Alliance of Independent Social Democrats (SNSD) hold 53 out of 83 parliamentary seats. To amend the Constitution, at least 56 votes are required.

Moreover, in the Council of Peoples, the SNSD lacks the necessary majority of five delegates within the Bosniak caucus.

If the proposed changes are rejected, a minimum of three months must elapse before another attempt at constitutional amendments can be made.

News