In the period since the signing of the Dayton Peace Agreement, under its framework and the framework of the Constitution of Bosnia and Herzegovina, questions have been raised concerning the Constitution of B&H, and in that context, the possibility of changing and modifying it has often been mentioned. The motives for critical consideration were manifold and different, but the most serious comments are based on the statements that the Constitution of B&H in some of its regulations deviates from the European Convention on Human Rights and Freedoms and that the Constitution leaves space for creating an expensive, complicated and inefficient country.
Improvement of the state of human rights and freedoms as a way of replacing the ethnic principle for a citizen, creating the bases for a fast economic growth, the need for strengthening local self-governance, obstacles in establishing the appropriate education and adequate role of the civil society and non-governmental sector, are some of the areas where there is a need for changes that include also some required changes to the Constitution of B&H, but also the Entities' constitutions and legislatures at all levels.
The Constitution, in its article 2 stipulates that Bosnia and Herzegovina and both its Entities will ensure the highest level of internationally recognized human rights and basic freedoms. It prescribes that the rights and freedoms given in the European Convention on protection of human rights and basic freedoms, together with its protocols, will be directly applied in Bosnia and Herzegovina. It is explicitly stated that the European Convention and its protocols will have the priority over all other laws.
As far as the guarantees given by the Constitution on respecting human rights and freedoms are concerned, it is important to mention the non-discriminatory clause according to which the enjoyment of rights and freedoms will be secured to all persons in Bosnia and Herzegovina, "without discrimination on any basis, including gender, race, skin color, language, religion, political and other opinions, national and social origin, belonging to a national minority, financial status that is acquired by birth".
But, the analysis of the Constitution of B&H implies that the constitution maker did not manage to install these principles and goals into the normative solutions. Namely, in that part of the Constitution the total organization and functioning of the basic state institutions are based on exclusively ethnic elements.
Therefore, instead of having at the forefront of the Constitution, as is the case in modern democratic constitutions, an individual, a citizen, a member of the Bosnia and Herzegovina society and then the state that would have the duty to ensure the executing of human rights and freedoms and the interests of the People of Bosnia and Herzegovina, the Constitution accepted exclusively the concept of the so-called constitutive peoples.
The central part of the Constitution of B&H is made of depositions that express the ethnic division created during the war and the aspiration for that division to be maintained. The part of the Constitution in question is the one regulating institutions and procedures. This part expresses the ethnic dimension of the inner organization of Bosnia and Herzegovina and almost exclusively deals with the existence and participation of the three constitutive peoples or three ethnic-religious groups, Bosniaks, Croats and Serbs. In that part "the other" peoples as well as citizens, although mentioned in the Preamble to the Constitution, are practically left out of the reach of the Constitutional regulative.
The main point that can be drawn from this part of the Constitution is that it seriously endangers the principles of equal opportunity for the citizens and the principle of non-discrimination when dealing with the possibility of access to the most important state functions. Thus, the function of a member of The Presidency of B&H, delegates in the House of Peoples of the Parliamentary Assembly of B&H and the Presiding of the both Houses of the Parliamentary Assembly of B&H and their vice-presidents, can belong only to the representatives of the constitutive peoples of Bosniaks, Serbs and Croats whilst the Constitution excluded from that function Romany, Jews, Ukrainians, Ruthenians, Albanians, Italians, Slovenians and those who belong to the other fifteen or so peoples who, according to the census from 1991, make up the population of Bosnia and Herzegovina. Also excluded are the categories of those who declare themselves as "Bosnian and Herzegovinian", "Bosnians", "Herzegovinians" and those that identify themselves with some other regional or other specification.
Three members are elected to become a member of the Presidency of B&H: one Bosniak and one Croat who are elected directly from the territory of the Federation of B&H and one Serb who is elected directly from the territory of the Republika Srpska. As far as the House of the Peoples of the Parliamentary Assembly of B&H is concerned, it is comprised of 15 delegates out of whom, two thirds are the delegates from the Federation of B&H, including five Croats and five Bosniaks, and one third from the Republika Srpska that includes five Serbian delegates.
In addition to the already established fact on exclusion, the stated regulations eliminate from running for the mentioned functions all the Bosniaks and all the Croats who live in the Republika Srpska as well as all the Serbs who live in the Federation B&H, thus disallowing them the possibility of using the passive election right for seats in the Presidency of B&H and the House of Peoples of the Parliamentary assembly of B&H. This directly undermines the application of the highest standards in the area of respecting human rights and freedoms and basic freedoms and its protocols.
The Dayton constitution maker based the total structure of the constitutional institutions and procedures on the importance of the ethnic groups - Serbs, Croats and Bosniaks - in the function of a whole state and political system. The essential characteristic of that part of the Constitution is that the ethnic groups or the constitutive peoples became the main agent of the total activity of the constitutional institutions.
The practice so far showed that the Constitution of B&H and the Annexes dealing with human rights did not ensure efficient instruments for the protection of human rights. Institutions at the level of Bosnia and Herzegovina, together with the international community, which, according to the Dayton Peace Agreement, has its share of obligations in implementation of that Agreement, obviously did not put the issue of building a modern and functional country that could become an instrument of regeneration of the destroyed B&H society at the forefront of their action. Annex 7, which deals with the return of refugees and displaced persons to their pre-war addresses, was an attempt to respond to the need for overcoming the position where the movement of more than half the population seriously endangered the survival of the B&H society. The issue of return, with all its economic, psychological, political, moral and numerous other aspects, at the same time synthetically expresses the need for protection of human rights and fundamental freedoms contained in the European Convention on protection of human rights to property, right to efficient remedy at law, freedom of movement, equality before the law, elimination of every form of discrimination on religious, national and any other basis, etc. The fact that half of the refugees and displaced persons have not returned to their homes together with the fact that only 20% of the returnees went back to the areas where their ethnic group is not a majority, clearly indicates towards the conclusion that neither the state of B&H nor the international community have done enough on the reintegration of the B&H society.
The biggest obstacle to the development of democratic institutions and the key generator for violating human rights could be said to be the existing incongruity between some regulations contained within the Constitution of B&H and the European Convention. Namely, if the domestic and international authorities in B&H coordinated the Constitution of B&H with the European Convention it would mean a key democratic step forward under the framework constitutional system established in Dayton.
This is why it would be necessary to introduce changes into the Constitution of B&H with the aim of recognition of an individual, citizen and his individual rights. The prerequisite for this is a consistent implementation of national equality and equality of citizens across the whole territory of B&H. This also implicitly includes redefining those regulations in the Constitution that deny the passive election right to any citizen of B&H, regardless of the part of Bosnia and Herzegovina they live in. Also, the regulation that postulates that the functions of the President and his Vice-President in the Houses of the Parliamentary Assembly of B&H are predetermined exclusively for the members of the three constitutive peoples should be abolished.
Finally, regarding human rights and freedoms, changes should be introduced that would mean the recognition of rights of the members of national minorities as well as those citizens who do not belong to the category of the three constitutive peoples or the category of the national minorities.
The statement about expensive, inefficient and complicated state is not hard to identify. Bosnia and Herzegovina has, de facto, fourteen constitutions, the same number of governments and parliaments and a staggering 180 ministers and ministries with all that comes with it through administration and expenses. As much as 60% of the national gross income goes towards public expenditure, whilst 30% goes directly towards the salaries of public officials. Whilst in Western Europe one official is employed per 2,000 people, that proportion is four times bigger in B&H that has one state official per 500 people.
The economic territory of Bosnia and Herzegovina is identical to its geographic territory, and it represents a potential market that should, by definition, be uniform in the same way the economic system as a group of regulations and measures that regulate issues of economic development should be uniform and consistent. Of course, this implies the functional division of jurisdiction between the individual levels of authorities in B&H, as, for example, between joint institutions at the level of B&H and Entities and Brcko District, and between Entities and local authorities. The key issue is to create conditions where every business and individual will be able, without any limitations, to do business in the whole territory of the country. In other words, neither individuals nor companies must be discriminated against, and they have to be able to realize their business and private interests in any part of B&H. This is a very hard and delicate, yet realizable, aim. It is hard and delicate because of the heritage of the recent past where the destructive political, national, religious, regional and other forces overpowered the positive economic interests. A special specific difficulty in realizing this aim is offered by the fact that there is still far more national-religious tension than awareness of the need to resolve the issues to allow for a higher standard of living. It seems the understanding, which is confirmed by some polls, of the importance of the standard of living has started to emerge and that the emphasis of importance is slowly shifting from non-economic to economic issues. In this context, the issue of developing a uniform economic system that would function on the whole economic territory of B&H, would be of crucial importance.
The importance of this issue is also emphasized by the fact that B&H is today one of the poorest countries in Central and Southeastern Europe. A faster recovery of the economy and a higher standard of living will be ensured by building a uniform economic system and the same conditions of business that would characterize it. A higher standard of living, expressed through employment and higher salaries will draw attention away from non-economic issues, which in turn would allow an easier recovery from the consequences of the recent past.
According to gross domestic product per capita, Bosnia and Herzegovina is at the bottom of the list of the countries of southeastern Europe compounded by the fact that only approximately 40% of gross national product comes from the private sector (MMF's estimate is 50%). In addition, since 1998, the rate of growth of gross domestic product can be seen to be falling. In 1998 it was 15.6%, and in 2002 only 3.8%. Gross domestic product per capita was $3,200 in 1998 and in 2002 only $1,470$ or 45% of the pre-war level.
Foreign investments in B&H in 2002 amounted to 320 million KM, which is around 3% of gross domestic product, placing B&H behind Albania, Romania and Macedonia, and only before Ukraine and Serbia and Montenegro. Foreign investments between 1994 and 2002 amounted to total of 848 million KM.
The official unemployment rate is more than 40%. If the gray economy is taken into account the actual rate could be around 20%, which is still very high. The public debt amounts to little more than 80% of the gross domestic product. Of all public debt, one third is internal debt, and two thirds is external debt. Public expenditure amounts to 50% of the gross domestic product, which indicates a high level of strain placed on the economy and households. In this case B&H is well above the average of the countries in transition. The picture is completed by the fact that at this moment, 750KM of modern motorways should be built in B&H for it to reach only the average level of Europe. This fact is very interesting in the context of talks about building the motorway on the VC corridor across the country.
This situation is, at least partially, a consequence of the disintegration of the economic system, which makes creating a long-term strategy of the development of the country nearly impossible.
In the eight post-war years, with stronger or weaker intensity, domestic policy is ruled by the obstruction of establishing a favorable environment in which a uniform economic system would act across the whole territory of the country. The lack of political stability, legal insecurity, weakness of economic system and an overall weak economy, complicated administrative procedures combined with a low level of business ethics make the business environment and investment climate extremely unfavorable. For a long time, different approaches and "interpretations" of implementation of the regulations of the Peace Agreement, including the Annex IV (Constitution B&H) , both by the national ruling structures and by the officials of the international community, especially OHR, contributed to the slow development of political awareness for the necessity to establish a uniform B&H economic system. In their first two mandates, 1991 to 1999, OHR did almost nothing towards integrating the economic and technical systems. On the contrary, the policy of deconstruction of the existing big firms was encouraged. These "big systems", with reconstruction, could have been rendered usable to continue their operations.
The movement of people, goods, services and capital is regulated by the article 1, clause 4 of the Constitution of B&H. "There shall be freedom of movement throughout B&H. B&H and the entities will not obstruct the full freedom of movement of persons, goods, services and capital throughout B&H. Neither entity will exercise control of any kind on the borders between the entities." But, regardless of the quoted constitutional regulation, it has not been implemented yet since there are political, legal, trading, financial, and even mental obstacles to the free movement of capital, goods and services. Introducing the uniform license plates encouraged the movement with more freedom by eliminating people's fear of movement through B&H. The full freedom of movement of people will be confirmed by the system of registration and issuing identification documents - the CIPS project. This is an improvement in further encouragement of people to feel equal citizens of B&H regardless of the area of B&H.
The situation is different when the functioning of the employment market is concerned. It is non-transparent and citizens who are returning to their previous places of living are affected by it the most. Young people are affected as well, and also those who do not have the possibility to apply for adverts in the areas they would like to get employment in. The employment centers are closed to workers from other parts of the country. In the practice of employing people there is a high level of discrimination regarding the area, but also the names of the people looking for employment and the will of the employers.
Domestic products and services are insufficiently present in the whole country and also discriminated against. The ruling politics and the governmental bodies limit the internal trade with their regulations - regulations of trade, double taxation, and such. Similarly, the necessary protection is not ensured and neither is there encouragement for the development of domestic products and services. Besides, the B&H bodies in authority and the Entities' bodies have no regulated mechanisms of uniform quality control and certification for sensitive export products - agricultural, foods, pharmaceutical and others. Neither the institutions nor accredited labs for the control of imported goods have been enabled for functioning. Many importers, in this situation, are pushing import through organized lobbying, disregarding the alternative development of domestic production. The over-valued KM, tied to Euro, by making import cheaper, especially goods and services from the dollar economies, provides encouragement for importing.
A similar situation has arisen in the area of movement of finances. The finances are still, mostly, tied to the Entities and the Brcko District, and in the Federation B&H they are enclosed into the borders of cantons. In the area of insurance, the appearance of insurance companies from one entity in the other entity is even less. The regulations are at least unified on the founding and trading of banks, which does not characterize any other area of socio-economic life. A central regulatory agency at the level of B&H needs to take over the function of the existing Entities' agencies.
The capital market functions entirely separately and is regulated by special entities' regulations. Unlike the banking sector, regulations on the capital market are different. In fact, the basic laws regulating the management of joint stock companies and their capital stock are different; one law exists in the Federation of B&H and another in the Republika Srpska.
The Commission for securities in the Federation of B&H and the Commission for bonds in the Republika Srpska started an initiative for harmonizing the basic regulations on the capital market - the Law on securities/bonds. It is intended for that law to be passed using identical text, similar to the law on banks, and to, when the conditions are created for it, become a uniform Law on securities/bonds at the level of B&H.
Everything that has been discussed on the relationship between the constitutional-legal and the actual suggests the conclusion that the right direction to the solution is in building a uniform economic system for the whole of B&H. But the trouble with that is that the key Entities' institutions as well as the ones in the Brcko District interpret differently the basic regulations of the Dayton Peace Agreement and the Constitution of B&H and do little to further consistent implementation, and although there are signs of progress - The Customs office, The Directorate for indirect taxation of B&H, Ministry for Defense of B&H, the framework Law on high education, the Law on accounting and others, a favorable political climate has not yet been created for the basis of building a uniform economic system in B&H.
In political practice so far, artificial political dilemmas were being created regarding the constitutional scope of B&H and the creation and passing of economic and financial legal regulations. This has as a consequence allowed inconsistent implementation of constitutional regulations that affect the direct authority in the area of foreign trade, customs, foreign exchange transactions, foreign debts and foreign investments, financing institutions and other sub-systems. The possibilities offered by other regulations have delayed the adequate regulation of other important segments of a uniform economic system, such as taxes and contributions, technical standards, consumer protection, regulations on certification and quality of products, establishing the veterinary administration, international and inter-Entities transport, air traffic, forming of public corporations and regulatory agencies-railways, electric power industry, postal and telecommunications, roads, and water among others.
The lack of reliable statistical figures and the lack of statistics at the level of B&H practically render impossible any serious thinking concerning future economic policies and moves.
Problems emerge in the relationship between the constitutional jurisdiction of B&H and the entities. Entities point out that their bodies act according to their constitutional jurisdictions and that they are not prepared to transfer the authorities to the bodies and institutions of B&H. However, the Entities' constitutions were created before the Peace Agreement of B&H in Dayton and are largely, especially when concerning economic and other normative factors, in opposition to many regulations of certain annexes of the Dayton Agreement, and as such, with the Constitution of B&H. And instead of the Entities coordinating their constitutions with the regulations of the Agreement and Constitution of B&H, they continuously and repeatedly find reasons for postponing integration and consistent market reforms. This is especially true for passing a uniform and harmonized legal regulative, and the establishment of the needed market institutions, with a harmonized relationship of all levels of decision-making and responsibility - B&H, Entities, Brcko District, cantons in the Federation of B&H and municipalities. A consistent uniform economic system in the country, which ensures the same conditions of economic activities to all businesses, has not been centralized, and there is even less unity than some of the political players like to emphasize.
Based on the above, it can be concluded that there is a considerable discrepancy between the constitutional-legal and the actual, that is to say, between the norm and practice.
The problems of social care, coupled with a difficult economic situation imply that, in this field as well, Bosnia and Herzegovina is at the bottom of the list of European countries and the countries of the region. The appropriate funding for social care is the lowest compared to all the countries of southeastern Europe and is less than 1% of the gross domestic product, taking into account both the Entities. Taking into account the fact that 20% of the population of Bosnia and Herzegovina lives below the poverty threshold, it is clear that the funds are insufficient. The concept of social care is not mentioned in the Constitution of B&H and it falls under the jurisdiction of the Entities. But, disparities between the Entities are considerable and result in the non-existence of a definition of an agreed minimum level of social rights in B&H as a whole. Bosnia and Herzegovina does not have the attributes of a social state unlike the majority of European countries. Therefore, developing the social policies, founded on uniform, minimum criteria for the whole country, is emerging as a potential integration factor, in contrast to the dominant policies and tendencies of disintegration, which should be introduced as new regulations to the Constitution of B&H as appropriate.
On the other hand, regulations of the Constitution of B&H do not represent an obstacle or imply a barrier to building a uniform economic system that would function on the whole territory of the country. But, the constitutions of the Entities and the Brcko District, as well as the constitutions of the cantons of the Federation B&H locate the jurisdiction in the field of economics and finances at those levels, which represents an obstacle resulting in poor cooperation between businesses and making the mobility of work and people negligible.
The primary responsibility and duty of establishing and implementation of a consistent regulatory framework for a uniform economic system lays with the bodies of B&H and the Entities' bodies in authority. By transferring the emphasis of creating a uniform economic system to the level of B&H, the Entities and other bodies of authority and organizations should, on a much larger scale, be involved in the joint work on harmonization and passing new regulations for subsystems within the uniform economic system, in accordance with the constitutional and legal jurisdictions.
Although the Constitution B&H comprises the principles of democracy, it does not mention local self-governance despite the principle that the local bodies of authorities are one of the main foundations of every democratic system. Principles, rights and duties of the local democracies have to be regulated by the normative that precede laws. The fact that Bosnia and Herzegovina ratified the European Charter on local self-governance puts the state under obligation to ensure independence and enabling local authorities to govern public businesses under their own responsibility and in the interest of the local population.
However, local authorities are not mentioned in the Entities' constitutions.
The Constitution of the Federation B&H established the local authorities as the third level of authority in the structure of the organization of authorities, but it did not execute the horizontal - internal decentralization between the cantonal and local authorities. Executing public affairs closest to the citizens, by the municipal structures of authorities confirms the autochthon character of a municipality, and emphasizes its self-governing property that it will execute public affairs on their own behalf and in their own interest.
The Constitution and legal regulations on jurisdiction of local authorities must be coordinated within the regulations of the European Charter on local self-governance to ensure local authorities are in control of public affairs closest to the citizens and that are of a special interest for the local population, such as: renovation, urban planning, building and renovation, housing, communal activities, communal infrastructure, social care, management of the local development land, ensuring the safety of property and people and the public order and peace, establishing of communal police forces, managing of lend rent, as well as other affairs that are entrusted to the local authorities in other European countries.
The Republika Srpska is in a similar situation, where the central level of authority between the central and local authorities does not exist, where the seniority of the republic bodies is more than evident, the local authorities are dependant on the republic fiscal policy, and they do not have the authority to regulate relationships in the areas entrusted to them. The new law on self-governance that has been passed does not ensure the autonomy of local authorities, the seniority is still dominant, the principle of proportionality of executing governing monitoring is being broken, the possibility of the government for dismantling the municipal council is in complete disharmony with all the principles of autonomy of local authorities determined by the European Charter on local self-governance. Republic bodies as well as the units of local self-governance - municipalities and cities - deny the legality to Bosnia and Herzegovina in signing and ratifying international agreements, conventions and charters from 1994, they negate achievements and deprive Bosnia and Herzegovina of the benefits in joining European institutions.
The local authorities, which are most suitable to regulate and manage the public affairs closest to citizens, do not have at their disposal the instruments for exercising these jurisdictions or to take measures for the protection of human rights, because all the authority fell to the cantonal authorities by division of jurisdictions between the Federation and cantons, by implemented decentralization. Cantons often reach for municipal jurisdictions, change their competencies, usurp their right to property, and thus negate and challenge the principles of the European Charter on local self-governance on whose principles the local democracies are established.
The position of municipalities after passing the cantonal laws on local self-governance is considerably worsened. In the name of proclaimed European concept on decentralization of authority, a large-scale centralization at the cantonal level has been executed, where the dominant fundamental concept of authority has been established.
The influence of the cantonal authorities on the total social, political and parliamentary life in the Federation is influential. Cantons do not allow the establishment of democracy through institutions of local self-governance, to promote the centers of cantonal authorities, the big, industrial, economic and cultural centers such as Zenica, Tuzla, Bihac, Travnik and others into cities with special authority in the sphere of political, government and normative organization. It is necessary to emphasize that the municipalities with the majority of population having a different national structure from the national structure of the total population dominant in the canton, the canton is obliged to transfer its exclusive jurisdictions and competencies regarding culture, education, tourism, radio and television, humanitarian activities and local business to each municipality.
With the creation of a new state community, municipalities and cities lost the status of socio-political communities, and are left on the margins and under the control of the cantonal authorities.
As the process of organizing the local democracies has not been finished yet, and the position of the local authorities has not yet been secured, the position of the local communities, the competencies guaranteed and secured and jurisdiction and the necessary financing should be defined and regulated through the reform of the federal legislative. Directions of development of local self-governance, involvement of the citizens in public businesses should be further developed through the cantonal legislative, and thereby ensure and strengthen democracy and protection of human rights.
For establishing a democratic society the first priority is the establishment of a local democracy based on the principles of the standards of the democratic Europe and European Charter on local self-governance - municipalities and cities as multi-national and multi-cultural communities of equal peoples and citizens in which the identity is guaranteed and a life offered in renewed trust, equality and tolerance. It is possible to ensure the return of the exiled citizens only in the local communities, which can guarantee freedom of movement, flow of ideas, accessibility of justice, social and health security and which protect property, safety of people and protection of minorities and minority rights.
The system of local self-governance should be coordinated with the developed and strong European conventions and charters in the domain of human rights and other achievements of Europe in the field of local democracies, with the aim of resolving complex ethnic, territorial and financial problems as well as other issues in organization of society and authority. Our system of local democracies as a typical form of territorial decentralization of authority should have all the attributes and characteristics of a system of local self-governance established in Europe by implementation of the European Charter on local self-governance. In other words, the aim is not the redistribution of authorities between the levels of state, Entities, cantons and municipality, but by placing financial resources at their disposal, allowing a strategy of development, and a self-regulating code of ethic
As an extremely sensitive and vulnerable sub-system, education especially suffered in B&H, not only physically in the war but also even more from ideological, political and nationalistic pressures and fictitious ownership claims. The war was especially good breeding ground for this. In the post-war period, there have been many instances of manipulation of education for the purpose of ideological and national-political goals, especially in certain regions and parts of B&H. Therefore, the similar trend of destroying the educational system was present in the war and has been present since. The goals that could not be achieved during the war are being achieved now through fictitious ownership claims and national differentiation of education in order for everybody to achieve their own national and cultural rights, and at the same time "smuggling" their political and ideological goals.
Certain Constitutional decisions (or lack of), by decentralizing the education system, together with some positive trends, at the same time opened the possibility for particular fictitious ownership claims of education through national-ideologization, indoctrination and politicization. There are examples where such trends went so far that the educational contents used in certain schools do not belong to the educational system of B&H, but are directly "imported" (from curricula to work-books) from the neighboring countries.
Without any doubt, the education system in B&H (if it can be called one system) has been confronted with extremely big challenges and dilemmas. It seems that over time, instead of contributing to overcoming some of these weaknesses and improving the extremely unfavorable situation of education in B&H, in fact, works against it. In the meantime, there is an ever-present dilemma: should one, unified system be built in B&H (certainly not Unitarian education system), or should its de-unification and differentiation into three separate and mutually opposed systems be continued.
The question arises whether some of the current problems of the education system in B&H have to do with the Constitution decisions, whether they arise because of the Constitution vagueness, or because of ignoring certain Constitution regulations, or because of abuse of certain Constitution decisions. Therefore, it is essential to determine to what extent this is the case of possible inadequacy or vagueness of the Constitution regulations, and to what extent this is, in fact, failing to follow the Constitution of B&H and its regulations.
In the Constitution (or rather Constitutions) of B&H it says that education is one of the basic rights of citizens . The Constitution of B&H was created as Appendix 4 of the General Framework Agreement For Peace in B&H. It seems that the Dayton agreement, which remained undefined because of its conciseness, established a very complicated Constitutional system. The actual position of powers and relationships in the country does not correspond to its liberalism.
All the Constitutions regulate human rights and freedoms. The Constitution of B&H Article I, subsection 3 gives a "catalogue of rights". The penultimate place (out of 13 rights enumerated) holds "the right to education". Not commenting on the position of education amongst the given human rights in the Constitution of B&H, it can be added that the other Constitutions (Entities' and Cantonal) similarly regulate the issue of human rights and freedoms, taking into consideration the instruments for protecting human rights from the Annex to the Constitution of the Federation B&H.
It should be pointed out that the constitutions mention the right to education only as one of the basic human rights, except for the Constitution of RS, where the article 49 emphasizes that besides the "right to education under equal conditions", "Primary schooling shall be compulsory and free". Vagueness of the other constitutions can be seen in the fact that, apart from RS, fees could possibly be introduced for elementary schools, and this would not be non-constitutional. This also affects the prescribed number years of elementary schools because the constitutions give the right to education but do not make the State responsible for it. It is true that these issues need to be addressed by law, but based on such a wide and liberal Constitutional regulation, there is a hypothetical possibility for each Canton to determine the compulsory education shorter or longer than 8(9) years or to introduce fees without it being a non-constitutional regulation.
Since the right to education in Annex 4 is only mentioned as one of the human rights, it remained only mentioned and without details in the Constitution of the Federation of B&H, as well as in all the Cantonal Constitutions. The exception is RS, which in its Constitution determines education in more detailed terms. Considering the weaknesses, straying and abuse in the field of education in almost the whole of B&H, and it is clear that these come from the vagueness of the Constitution Regulations, there is a need for more precise demands, needs and expectations in education in the Constitution of B&H.
A separate question is carrying out the compulsory education because there are reports that it is not carried out equally across the country. There are examples of discrimination without any ratification. Statistics say that around 4-5% of children are not able to go to school, be it because of segregation, parental decision, and geographical distance of schools or because of poverty. To what extent are these children protected by the Constitution? It is true that the Constitution relies of the Convection on the Rights of the Child, where education is one of the main regulations, not only as a right but also as an obligation. In B&H case that seems vague and inexplicit.
Although all the European Constitutions, as a rule, rely on the General Declaration on Human Rights, on the Convention on the Rights of the Child and other similar agreements of international, universal importance, the majority of constitutions do not stop at mere mentioning, or implicit inclusion (as is the case with B&H) of the right to education. In the French Constitution, article 13 it says, "The Nation shall guarantee equal access of children and adults to education, professional training and culture. The establishment of free, secular, public education on all levels shall be a duty of the State."
After analyzing the treatment of education and governance in the Constitution(s) of B&H, it can be concluded that the Constitution actually acted prematurely by forming of new democratic, multiethnic and multicultural country, which should develop and function according to democratic principles provided for in the additional agreements on human rights in the Appendix I.
It has to be mentioned that even highly decentralized models of management of education need one state body that would be responsible for making the basic educational policies and would supervise adherence to the Constitutional Regulations and internationally accepted agreements on human rights, which are given in Annex I of the Constitution of B&H. Such a need has arisen from experience and has been fulfilled occasionally by the representatives of the international community (OHR, OESC), lately also by the State Ministry for Internal Affairs.
A highly decentralized system of governing the state and education, applied for example in Switzerland, protects from unacceptable solutions and practices through wording given in the preamble: ."determined to live our heterogeneousness in unity, respecting each other, aware of our mutual successes and our responsibility for the future generations. "Perhaps a similar sentence would be useful in the Constitution of B&H.
Although the Constitution of B&H regulates the issue of discrimination in Article II, clause 4 there are numerous cases of violation especially in those parts where the majority in the ethnically cleansed areas prevent the return of refugees.
Apart from the dilemmas about exercising the basic right to education, the issues of language in education, teaching of religion, there are other examples of discrimination and segregation in the B&H educational system (although it is hard to call it one system). These occur mainly in the attempts to prevent the returnees and their children to have a normal life in their city.
For example:
Neither the Constitution of B&H nor the other constitutions in B&H give precise regulations on the bases of which the citizens could be protected from these and similar forms of discrimination.
The same goes for the laws in education, which do not have the appropriate basis in the Constitution. They regulate these issues according to the environment and the majority of population.
The arguments given so far support the need to initiate wide discussions at all levels on the more clear definition of the Constitution of B&H concerning education, inevitably discuss the language and linguistic policies in B&H, the status of religious education in the public educational system, relationship between religion and the State, as well as the justifiability of using the term citizen instead of constituent people.
Within the framework of total processes for transition towards democracy and a market-oriented economy, the time has come in Bosnia and Herzegovina when the institutions of state authorities and their agents need new forms of activities and cooperation and new knowledge and skills in order to successfully execute their jurisdictions regulated by the Constitution. A special role in this process belongs to the need for cooperation with the non-government sector, including negotiating and division of jobs, responsibilities and authorities in executing certain socially useful functions respecting equal partnership relationships, and much higher level of flexibility and creativity in the approach to resolving the big political, economic and social problems that face the B&H society today.
In the past ten years there has been a strong development of non-governmental organizations in Bosnia and Herzegovina. In the first period the war had a determining influence on orientation of the majority of non-governmental organizations to exercise humanitarian activities directed towards removing or reducing of the many, destroying consequences of the war.
The non-governmental sector in Bosnia and Herzegovina is taking an ever more important place and role regarding the influence on the total social processes in the country today.
The lack of suitable analysis and a wider theoretical debate elaborates the idea that the development of the non-governmental sector in Bosnia and Herzegovina in all its aspects and elements is felt more and more amongst those who engage in them professionally and scientifically as well as amongst the activists from the non-governmental sector itself. In this field, Bosnia and Herzegovina is considerably falling behind other countries in transition. That was the main motive for recent initiating of wide public debate on the attained level of development of the non-governmental sector in Bosnia and Herzegovina, the strategy of its future development and the possible establishment of a higher level of the partnership cooperation between all the three sectors of the B&H society: government, business corporations and non-government organization.
Looking at the non-government sector in Bosnia and Herzegovina in the international context, it can be concluded that it is falling behind in many aspects and elements of a developed and healthy civil society: starting with regulation of the legal framework/legislative regulative and prevailing political opinions and relationships of institutions of the state authority toward the place and the role of the non-government sector in developing a democratic society, to the attained level of professional enabling of the activists and leaders of the civil society, financial resources at their disposal, development strategy, to the level of self-regulation, the code of ethic behavior and the public relations. But it also needs to be said that the structure considerably differs from the non-government sector in other countries of Central and Southeastern Europe. The fact that Bosnia and Herzegovina has a very complex and specific structure of the constitution-legal organization and the organization of execution of state authority especially needs to be taken into account, and that the organization of the state and its legal system are in the process of development, with many weaknesses and gaps.
The growth of non-governmental organizations in Bosnia and Herzegovina today is obvious in many areas of social life. However, the history of developing organizations and institutions independent of the power of the state is still short, and the culture of living and acting in the conditions of a pluralistic society and peaceful, non-violent resolution of social conflicts and disagreements is still underdeveloped. The attained level of development of the total democratic culture in the society still does not offer the environment that would enable and stimulate much larger engagement of all the subjects of the non-government sector, their further development and a considerable influence on the basic processes that mark the long-term development of Bosnia and Herzegovina.
In many parts of the country the non-government organizations were the first forms of emergence of alternative thinking as opposed to the thinking of the ruling elites. In conditions of absolute dominance of politics over all other spheres of social life, the emergence and activities of non-governmental organizations presented a new quality and a critical voice in many social relationships, the behavior of the current state and political authorities, especially within the nationally homogenous environments. Non-government organizations engage in protection and promotion of human rights and basic freedoms, return of refugees, development of democracy and civil society.
Many non-government organizations took on some obligations that should be dealt with by the government institutions. For example, return of refugees, offering services of legal aid and such. This is one of the important advantages and the best proof of flexibility shown by the non-government sector in Bosnia and Herzegovina. That way the non-government sector is becoming deep-rooted in the society as an important factor in offering a wide spectrum of social services.
In further development and enabling of the non-governmental sector in Bosnia and Herzegovina, besides engaging in its functional, organizational and human resource strengthening, the primary directions of that development should be the continuous cooperation and meaningful partnership between the government and non-government sector and strengthening the material basis and financial abilities of the non-government organizations for realization of activities and objectives for which they were founded. Adequate legislative solutions will have to be prepared for an adequate financial treatment of the non-governmental organizations, first of all through offering tax concessions to donors, and for their inclusion and consultation in the decision making process important for the development of the civil society.
The existing Constitution of Bosnia and Herzegovina makes it possible to make progress in establishing a modern, functional and cheaper country. It is exclusively a matter of political will to what extent the possibilities offered by the Constitution will be used and to what extent the constitutions of the Entities and the Brcko District and the laws at all levels will be adjusted to it.
However, it is also clear that some of the regulations of the existing Constitution of Bosnia and Herzegovina have to be changed in order to be coordinated with the European Convention on Human Rights and Freedoms and its protocols. This is primarily about the demand for establishing such constitutional organizations that would guarantee equality to all citizens of Bosnia and Herzegovina, regardless the ethnic origins. Further, there is an acute need for the ethnic absolute not to determine the Constitution of B&H and for introducing a concept of citizen, on which lay the foundations of the modern democratic constitutions and the modern concept of protection of human rights and freedoms.
Furthermore, the non-representative level of some areas and the lack of their closer defining and determining in the highest legal act of a country would pose the need for the Constitution of B&H to be determined according to the areas of education, social policies, health care, local self-governance and such.
The constitutional solutions are the reflection of the social reality; therefore the emphasis must be precisely on the change of that reality.
The Constitution of Bosnia and Herzegovina can only be changed in the Parliamentary Assembly of B&H and it should undergo the democratic check, so that the public debate on its regulations, through the non-governmental sector, employers associations, syndicates, media, would be welcome and could serve a two-fold purpose: to remove those weaknesses shown in practice and allow the Constitution to gain legitimacy.
Sarajevo, June 2004