The Unconstitutional Holiday: Bosnian Constitutional Court annuls Serb Republic Day
The anniversary of the Battle of the Golden Spurs is the national holiday of the Flemish Community. The battle took place in 1302 and was part of the Franco-Flemish war. In the cruel battle, several thousand French noblemen were killed, including their leader Robert II of Artois. He begged for his life when surrounded, but Flemish soldiers refused, because they “did not understand French.” Although historical studies defy such simplistic readings, the battle became a powerful symbol for the struggle of Dutch-speaking Flemings against French-speaking Walloons.
Let us assume that Belgian French-speakers found the choice of the Flemish national holiday discriminatory and asked for judicial review. Let’s say that the Council of Ministers, presided by the French-speaking Belgian prime minister Charles Michel, took the decree establishing the flag, hymn, coat of arms and holiday of the Flemish Community to the Constitutional Court. Michel could argue that the symbols of the Flemish Community and its holiday violate the principle of equality between Belgians (Art. 10 Constitution) and the principle of loyalty to the Belgian state (Art 143); alone or taken in conjunction with Article 1.1 and 2.(a)(c) of the Convention against Racial Discrimination (ICERD). Imagine as well that a nearly unanimous Flemish parliament has passed a prior resolution declaring that it would not comply with the Court decision. The Court could easily dismiss the claim for lack of temporal jurisdiction. But, for the sake of argument, let’s just assume that the Court found the case admissible and ruled the flag, the hymn, the coat of arms and the community holiday unconstitutional.
Would the Constitutional Court not go beyond the implicit and explicit boundaries of its power? How would the Flemish Community and the people in Flanders react? Would it not be seen as an attack on Flemish identity and autonomy? Would the Court not risk its own reputation and legitimacy by taking a case like to enflame communitarian passions between French and Dutch speakers? Would the rule of law not be the first victim if the decision were not implemented?
Change of location. In 2006, the Constitutional Court of Bosnia-Herzegovina annulled the coat of arms, anthem, family patron saints and church holidays of the Republika Srpska, one of the territorial sub-units in a country with one of the most complicated political systems in the world. The Court annulled the church holidays, because they largely reflected Orthodox religious holidays only (U-4/04). Excluded from the official holidays were those of the other two main religious denominations, Muslim Bosniaks and Catholic Croats. The Court equally annulled coat of arms and flag of the Federation of Bosnia-Herzegovina, the other territorial sub-unit. The flag of the Republika Srpska survived Court scrutiny, but two international judges strongly dissented. In these decisions, the Court argued that symbols have to reflect the identity, culture and traditions of all three constitutive groups in Bosnia (Bosniaks, Serbs, Croats) without any territorial delimitation.
The Serb Republic implemented the judgment after considerable delay in 2007, but kept the Day of the Republic as the entity holiday. January 9, the Day of the Republic, is important for Bosnian Serbs for two reasons. Frist, it is on 9 January 1992 that the Bosnian Serb parliament proclaimed the Bosnian Serb Republic. As widely known, the establishment of the Republic was tainted by brutal policies of ethnic cleansing. Second, Stephan’s day falls on January 9, according to the Julian calendar. The holy Stephan is the patron saint of the Bosnian Serb Republic. The coincidence between a public and a religious holiday begs the questions whether this is a ‘secular holiday’ or a religious holiday. Bosniacs strongly dissented from that choice, mainly because of the association of the date with the founding of the Serb Republic. Six years later, the Bosniac member of the state presidency called upon the constitutional court to review the constitutionality of the entity holiday.
The lead-up to the judgment
Bakir Izetbegovic, son of wartime leader and former Bosnian president Alija Izetbegovic, submitted a request to the Court to review the constitutionality of the entity holiday (U-3/13). As he is member of the tripartite Bosnian presidency, Izetbegovic has direct access to Court without needing to justify individual and personal interest. Izetbegovic can challenge ‘any provision of the entity law and constitution’[i] for their compliance with the Bosnian Constitution and the European Convention on Human Rights[ii].
Faced with this ‘hot potato’, the Court calls on help from outside. In June 2013, the Court asks the Council of Europe’s Venice Commission for advice. Some months later, the Commission’s Amicus curiae brief is ready. For the Venice Commission, the entity holiday acts ‘more as a wedge than a joint’ in the multi-cultural society of Bosnia. Read in conjunction with the strong non-discrimination principle of the Bosnian Constitution, the Venice Commission found that the Day of the Republic gives rise to a violation of the European Convention on Human Rights (Protocol 12) and the International Convention against racial discrimination (ICERD).
The Court took a long time to decide the case. The case was pending for nearly three years, not because it was of considerably technical complexity or for reasons of backlog. The Court had a very hard time deciding the case, because it was one of the cases that pitched the judicial versus the political sphere. Already in the case on the flag of the Serb Republic, international judges Constance Grewe (Strasbourg) and David Feldman (Cambridge) needed much ‘heart-searching’ to come to a conclusion (para 4, separate opinion). At that time, Bosnia’s local judges had agreed on a compromise to keep the Bosnian Serb flag, but annul coat of arms, hymn and religious holidays of the Serb Republic. After nearly three years, the Court was finally ready to decide the case dealing with the Republic Day.