Of veto players and entity-voting: institutional gridlock in the Bosnian reform process

Abstract

Entity-voting in the Bosnian Parliamentary Assembly is a veto mechanism in Bosnia's consociational institutional setting and an important reason for the country's orientation towards the political status quo. An empirical analysis of the number and nature of adopted and rejected draft laws during the legislative period 2006–2010, embedded in George Tsebelis's veto player approach, leads to the conclusion that the veto players in the parliament – either delegates from Republika Srpska or delegates from the Federation of Bosnia and Herzegovina – have pushed the consociational system of checks and balances to its extremes. Entity-voting enables the veto players to “hijack” the parliament for their exclusionary ethnic interests and discourages cooperation and compromise between the veto players. Significant legislation, which in the present article is defined as legislation relevant for the European Partnership, faces severe obstacles to getting passed. In the light of these findings, the article discusses three policy implications: institutional redesign, a change of the actors, and an active role of the European Union for providing the actors with a realistically achievable goal which they equally share. This should reset the current calculus of self-interest and encourage cooperation between the veto players.

Keywords:

• Bosnia and Herzegovina
• veto players
• entity-voting
• consociationalism
• European Partnership

Acknowledgements

I would like to thank the two anonymous reviewers for their excellent comments which helped a lot for writing this paper. Moreover, I owe gratitude to Ms. Caroline Ravaud for her encouragement and support to carry out this study; Ms. Sanja Stanujević for making the cooperation with OHR/EUSR and thus the whole project possible; and Mr. Reinhard Heinisch for his great support whenever it was needed.

Notes

Annex X of the Dayton Peace Agreement establishes the presence of a High Representative (since 2002 also EU Special Representative). The High Representative watches over the adherence to the Dayton Agreement by the former war parties. To carry out this task, he has large competencies (“Bonn Powers”) that entitle him to actively intervene in Bosnian politics through “Decisions,” if he considers the Agreement as being endangered (Bosnia and Herzegovina, “The General Framework Agreement” Annex X; Chandler 157).

Kasapović calls Bosnia an “asymmetrical confederation” (4), Bose “confederal in character” (20), and Carl Bildt, the country's first High Representative, the “most decentralized state in the world” (qtd. in Belloni, “State Building” 44).

These are just estimates. Until today no official numbers exist on the post-war ethnic composition of Bosnia. The last census was held in 1991, when Bosnia was still part of Yugoslavia. Today, approximately 7% of the total population belong to minorities like Jews, Roma, or are offspring of mixed marriages. They are subsumed under the term “Others” and can run for public office in the state government and the House of Representatives – but not for the three-fold Presidency and the House of Peoples. This constitutional arrangement was rejected by the European Court of Human Rights in December 2009 as being discriminatory (European Court of Human Rights), urging Bosnia to carry out a respective constitutional reform, which so far has been stalled.

Tsebelis distinguishes between institutional veto players (players defined by the constitution, such as the houses of parliament, the president, etc.) and partisan veto players (players generated by a country's political game, such as coalition partners). The consent for policy change of institutional veto players is both a necessary and sufficient condition, whereas the consent of partisan veto players is not sufficient, as their agenda still can be vetoed by institutional players like the parliament. In the case of over-sized majority or minority governments, their consent is also not necessary, as the players can bypass each other (“Decision Making” 302).

In the HoP, the vital interest veto was invoked only four times in 11 years (Trnka 13).Vital interest has one decisive disadvantage, compared to entity-voting: It does not stop the legislation process for good. Whenever vital interest is invoked, the HoP has to set up a commission to decide on its justified invocation; if there is no agreement in that commission, the Constitutional Court will rule if the vital interest of the complaining ethnicity was indeed threatened (Bosnia and Herzegovina, “Rules of Procedure House of Peoples” Art. 161, Art. 162; Trnka 13). Between 2006 and 2010, vital interest was deployed only once, by the Bosniak caucus in May 2008, when the house adopted a non-binding resolution asking the CoM to submit legislation that would allow the creation of a Croat public broadcaster. However, the Constitutional Court decided that vital interest had not been violated, which probably did not encourage a more frequent use of the veto (Constitutional Court of Bosnia and Herzegovina).

The Collegium consists of the chairman, the first, and the second chairman of the respective house. It is responsible for the cooperation between the houses and represents them before the Presidency and the CoM. It is also responsible for the harmonization of a parliamentary item, if it was rejected by entity-voting. If the Collegium comes to an agreement, the item in question is considered adopted. If there is no agreement, the item under consideration has to undergo a second round of voting by the house before it is either finally rejected or ultimately adopted, provided the number of dissenting votes does not amount to two-thirds or more of the delegates present and voting, of each entity (Bosnia and Herzegovina, “Constitution” Art. IV Paras. 3e, 3f; “Rules of Procedure House of Peoples” Arts. 73, 74; “Rules of Procedure House of Representatives” Arts. 79, 80).

“Ethno-nationalism” means the construction of exclusive identities and a delimitation towards the “other” by emphasizing ethnicity as a main reference frame for nationality. Ethno-nationalism has resulted in “ethno-politics” after the war: a political style that follows exclusively ethnic self-interest, relating it to a narrow concept of nationality. For a detailed discussion on ethno-nationalism and ethno-politics see Džihić.

The government coalition that shaped the Council of Ministers during the 2006–2010 legislation term consisted of parties that saw their mission primarily in representing the interests of their respective ethnicity: Serbs were represented by SNSD (Savez Nezavisnih Sozijaldemokrata – Alliance of Independent Social Democrats), whose party leader Milorad Dodik was also the RS Prime Minister. He repeatedly expressed his desire to lead RS into independence – still, compared to its big rival party in RS, the Srpska Demokratsa Stranka founded by Radovan Karadžić, the SNSD was considered to be more moderate. Muslims were represented by SDA (Stranka Demokratske Akticje – Party for Democratic Action), whose party leader Sulejman Tihić was known as a rather moderate politician, but had a difficult stand due to the radical elements in his party, and by SBiH (Stranka za Bosnu i Hercegovinu – Party for Bosnia and Herzegovina), which pursued a radical anti-RS course (calling for its abolition) under its leader Haris Silajdžić. Finally, two Croat nationalist parties, the HDZ BiH (Hrvatska Demokratska Zajednica Bosne i Hercegovine – Croat Democratic Union of Bosnia and Herzegovina) and its split-off, the HDZ 1990, completed a pretty unlikely government coalition.

In 2008, Bosnia signed the Stabilization and Association Agreement (SAA), which sets the pathway for an intensified European integration by harmonizing domestic legislation with the aqcuis communautaire, granting access to the European market as well as economic and technological assistance (Delegation of the European Union to Bosnia and Herzegovina). However, the agreement was not yet in force during the 2006–2010 term, meaning that harmonization activities were carried out on a voluntary basis.

Two sessions of each house were not available for analysis. For the HoR, these are Session 12 and Session 70; for the HoP, Session 7 and Session 43. Therefore, the analysis does not include the complete legislation period, which, however, should not thwart the overall trend which is assessed in the present investigation.

I would like to express my sincere gratitude for this cooperation, which made this research project possible.

For the overall view of adopted and rejected legislation I analyzed the first and second reading separately. Most bills failed already during the first reading due to entity-voting, which therefore required special attention. However, for the in-depth analysis of rejected legislation I abstained from distinguishing between first and second reading, for two reasons: It had no further relevance for the overall analysis, and it would have affected the readability of the empirical part (especially regarding the Figures).

The Rules of Procedure of the houses allow a bill to be adopted in “urgent procedure,” meaning that it has to undergo only one reading, if the delegates take a respective decision (Bosnia and Herzegovina, “Rules of Procedure House of Peoples” Art. 122; “Rules of Procedure House of Representatives” Art. 127).

I would like to thank Elisabet Tomasinec from the Political Economic Section of the EU Delegation in Sarajevo.

Authorized proponents who can submit a draft law to the Parliamentary Assembly can be any member of one of the houses, a parliamentary committee and the joint committees of the houses, the Presidency, and the CoM (Bosnia and Herzegovina, “Rules of Procedure House of Peoples” Art. 92, “Rules of Procedure House of Representatives” Arts. 101, 102).

As already mentioned, domestic legislation can also certainly be “significant” in terms of importance. Unfortunately, the present analysis cannot distinguish “significant” from “non-significant” domestic legislation or create a hierarchy of importance, because the development of the required objective decision rule is beyond its scope. We therefore cannot assess if “significant” domestic legislation failed more or less frequently than bills which could be considered as less important.

Central European Free Trade Agreement. Member parties are the successor states of Yugoslavia (except Slovenia), Albania, and Moldova (see Central European Free Trade Agreement).

Annex 7 of the Dayton Peace Agreement obliges the contracting parties to support the return of refugees to the regions from where which they were expelled during the war (Bosnia and Herzegovina, “The General Framework Agreement” Annex VII). However, until today it has not been fully implemented, and it is doubtful if it ever will be.

Decision-making in the CoM usually is carried out by a majority vote that requires at least one vote of each constituent people, “on all matters and topics which are subject to final decision-making by the Parliament.” On other matters the CoM decides by consensus, “particularly on regulations, appointments, and assignments.” The Rules of Procedure state that if the Council fails to reach consensus, the Chair should negotiate the issue separately with its opponents (“harmonization”). In case that consensus fails, the CoM can pass decisions by majority vote, which also has to include the vote of at least one of the three constituent peoples (Bosnia and Herzegovina, “Rules of Procedure Council of Ministers” Article 48 Paras. 1, 2, 3).

Since 2007, the relationship between RS politicians (especially Dodik) and the international community and its High Representative has been extremely tense. The 2007 reform of the Council of Ministers' and parliament's Rules of Procedure by High Representative Miroslav Lajčak in the context of the unproductive struggle for a state-wide police reform irritated the Serbs so much that the CoM's Chair Nikola Špirić resigned and Serbs walked out of CoM (Belloni, “Bosnia” 365; International Crisis Group, “Bosnia's Incomplete Transition” 12–14). In September 2009, High Representative Valentin Inzko imposed eight laws by using the Bonn Powers. Soon after, RS Prime Minister Dodik publicly rejected these laws and threatened to pull all Serb representatives from the Bosnian government. Given the fact that the High Representative did not enjoy the international support his predecessors did, he had little authority to sanction this uncooperative behaviour (International Crisis Group, “Bosnia's Dual Crisis” 2f.).

The Brčko Statute notes that at least one-third of the votes of each ethnicity are necessary for the adoption and amendments to laws or decisions proposed by Councilors that would otherwise be “subject to affirmative voting in the Government.” The adoption of amendments proposed between the house's two readings also require the votes of one-third of each caucus, if the concerning law has been subject to affirmative voting in the Government before (Bosnia and Herzegovina, “Statute of Brčko District in BiH” Art. 36). Affirmative voting, both in the Assembly and the Government, is also required for issues on religion, culture, education, language, budget, spatial planning, national holidays, and monuments (Art. 33a Para. 1, Art. 53).