Bosnia and Herzegovina and the new election law: BiH is about to adopt a new 'Lex Čović' election law
The International Institute for Middle-East and Balkan Studies (IFIMES) in Ljubljana, Slovenia, regularly analyses events in the Middle East and the Balkans. In view of the announced adoption of a new election law in Bosnia and Herzegovina IFIMES has prepared an analysis of possible consequences of changes to that law. The most relevant and interesting sections from the comprehensive analysis entitled“Bosnia and Herzegovina and the new election law: BiH is about to adopt a new 'Lex Čović'election law”are published below.
Bosnia and Herzegovina and the new election law:
BiH is about to adopt a new “Lex Čović”election law
The Central Election Commission (CIK) of Bosnia and Herzegovina has found itself in the middle of a scandal again, this time regarding its attempts to make some anti-constitutional changes to the Election Law of Bosnia and Herzegovina in cooperation with political parties that have been systematically undermining the country's existence and integrity. The key leaders of the above stated politicalparties Milorad Dodik (SNSD – Alliance of Independent Social Democrats) and Dragan Čović (HDZ – Croatian Democratic Union) will try to abuse the next general election in Bosnia and Herzegovina scheduled for 7 October 2018 in order to create (escalate) a crisis as a means of breaking up the country.
The scandal involving CIK is the culmination of long-lasting anti-state activities and attacks by theDodik-Čovićduo –strongly supported by Serbia and Croatia – against the most important structures and institutions of Bosnia and Herzegovina, including the attacks against the state's defence structure (the Armed Forces of BiH, the Intelligence-Security Agency of BiH (OSA), Ministry of Security and State Investigation and Protection Agency), the judicial and prosecutorial system as well as the Constitutional Court of BiH and constitutional courts of entities. Attacks against the institutions of Bosnia and Herzegovina at the same time represent attempts to assume control over those institutions. Dodik and Čović, with the support of some other political groups, have gained control over the High Judicial and Prosecutorial Court of BiH (VSTV), The Court of BiH and the Prosecutor's Office of BiH, Ministry of Defense of BIH, the Central Election Commission and, what is the most dangerous, to a certain extent even over the Constitutional Court of BiH. It should be noted that the Constitutional Court of BiH abolished an earlier decision and intervention made by OHR regarding the Constitution of the Federation of BiH when it approved the appeal filed by Božo Ljubić (HDZ), who was then Chairman of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina, which represents the strongest action so far against international community's interventions and thus also against Bosnia and Herzegovina. CIK's current activities represent a criminal attempt to realise the decision of the Constitutional Court of BiH which upheld Božo Ljubić's appeal, since theDodik-Čovićduo did not manage to pass the above stated decision of the Constitutional Court of BiH through the parliamentary procedure (which had been envisaged by the Constitutional Court). The attachments to this analysis contain the decision of the Constitutional Court of BiH (Attachment No.1) as well as the opinion of the Office of the High Representative (OHR) (Attachment No. 2) which had been submitted for the purposes of public discussion regarding Ljubić's appeal. Thus the Bosnian-Herzegovinian and the international public can see that OHR's original opinion was not taken into account by the Constitutional Court of BiH although OHR's opinion was strongly against Ljubić's proposal: „It has been established that the appellant contested certain provisions of the Election Law while not contesting the provisions of the Constitution of the Federation of BiH. However, it is clear that the provisions of the Election Law are in line with the principles laid down in the Constitution of the Federation of BiH and that various provisions of the Constitution of the Federation of BiH are intrinsically consistent and have to be implemented simultaneously, also through the Election Law “. When adopting the decision the Constitutional Court judges ignored OHR's opinion and only used the “arguments” that would suit their decision and Ljubić's appeal.
In this way they fully neglected the principle of legitimate representation of nations enshrined in European legal tradition in which the nation is regarded as “demos”, i.e. all the inhabitants within a country. According to that legal tradition legitimate representation of nations means that the nations are represented by selected representatives whose number is proportional to the total number of inhabitants regardless of their ethnic identity. Within the European legal tradition there are no a priori legitimate representatives of ethnic communities, although it is usual practice in multiethnic societies to have a bicameral parliament as a corrective element that should ensure equality in the representation of ethnic communities. Thus the upper chamber usually applies parity in their representation. However, the principles of parity and proportionality are completely opposed and may not be mixed up, as was the case in Ljubić's proposal which was upheld by BiH Constitutional Court and the Central Election Commission. Thus in the upper chamber ethnic communities should be represented according to the parity principle which is an absolute condition and does not allow the principle of proportionality during selection of upper chamber representatives in districts or cantons. Each ethnic community must have the same number of representatives in the upper chamber. According to this principle even the group of the so called “other” should be represented by the same number of representatives as the three constitutive nations since parity is the absolute condition and there is no reason to exclude “other” nations as a constitutionally recognised category from the parity principle. Unfortunately, Article 8 of the Constitution of the Federation of BiH is ambiguous in that respect and allows manipulations as the one undertaken by Ljubić and supported by the BiH Constitutional Court and CIK. It states that:
(1) Delegates to the House of Peoples of the Federation of BiH shall be elected by the Cantonal Assemblies from among their representatives in proportion to the ethnic structure of the population.
(2) The number of delegates to the House of Peoples to be elected in each Canton shall be proportional to the population of the Canton, whereby the number, structure and manner of election of delegates shall be regulated by law.
If the House of Peoples of the Federation of BiH is composed on the parity basis (which is its fundamental function aimed at ensuring equality), this means that the representation “in proportion to the ethnic structure of the population” cannot be applied as the condition: ethnic communities may either be represented on the basis of the parity principle or the principle of proportional representation within the ethnic structure of the population as a whole. Moreover, should a decision be implemented that the number of representatives to be elected in each canton is proportional to the number of inhabitants of that canton, this cancels out the principle of parity, since in that case the cantons with the higher population would need to have a higher number of representatives than the cantons with the smaller population, which means that the parity principle could not be applied to the representation of ethnic communities. However, instead of having examined and eliminated those contradictions and ambiguities in the Constitution of the Federation of BiH, the Constitutional Court of BiH accepted the logical and legal manipulations that enable the mixing of proportional and parity representation principles, thus playing into the hands of the HDZBiH political party which demands parity whenever the Croats clearly represent an ethnic minority and proportionality whenever the Croats can be statistically regarded as an ethnic majority. Surely HDZ has a right to try and achieve certain manipulations or circumventions, but it is the Constitutional Court of BiH and the Central Election Commission who should be careful not to be deceived or to forget about the fundamental constitutional rule according to which parity and proportionality are contradicting principles: one of the parliament chambers may be composed exclusively on the proportionality principle and the other only on the parity principle.
Before the adoption of the decision a representative of the Central Election Commission was invited to attend the public debate to present the opinion and position of CIK. However, during the debate CIK representatives did not present the position of CIK but their personal opinions on the appeal. The public debate was not attended by the members of the Parliamentary Assembly of Bosnia and Herzegovina who were blocked by HDZ. Nevertheless, Chairman of the House of Peoples of the Federation of BiH Lidija Bradara (HDZ) was present in the debate and expressed the position that the House of Peoples supports Ljubić's appeal. In its decision the Constitutional Court of BiH stated that a representative of the House of Peoples of the Federation of BiH expressed support to the appeal and mentioned the shortcomings in the functioning of the House of Peoples.
The competent bodies of the Federation of BiH should examine how and under whose authority the House of Peoples upheld Ljubić's appeal during the public debate while it is known that the Bosniak side was against that appeal. Similarly, the opinion of the Venice Commission (European Commission for Democracy through Law) was one-sidedly misinterpreted by the Constitutional Court of BiH although the Venice Commission stressed that “according to the Constitution of BiH Federation the system seems to be in line with the European and other international election standards, however, bearing in mind that the Election Law of BiH would implement the relevant provisions of the Constitution of FBiH the system also seems to be in line with those provisions.” Moreover, despite the fact that the Venice Commission stated that Ljubić's appeal cannot be based on the European election standards regarding the election of representatives to the House of Peoples of the Federation of BiH, the Constitutional Court of BiH completely ignored that opinion as well as all other positions of OHR and the Venice Commission.
Dragan Čović aspires for another term of office in the BiH Presidency, so he wants to achieve the division of Bosnia and Herzegovina before the beginning of 2018 general election. To that end he even collaborates with the Central Election Commission whose task is to disintegrate BiH and tailor the election to suit HDZ and Dragan Čović. This deceitful attempt to amend the Election Law is already referred to as Lex Čović within HDZ. Čović has already received the go-ahead from HDZ to stir and escalate the crisis which would bring the country back to the situation before signing the Washington Agreement, i.e. to the Owen-Stoltenberg plan according to which Bosnia and Herzegovina would be divided into three ethnic parts. This would definitely bring an end to the original Dayton Peace Agreement which was based on the existence of the Federation of BiH pursuant to the Washington Agreement. Return to the Owen-Stoltenberg plan and the creation of the “third entity” would represent the collapse of the Dayton constitution as well as the end of the Dayton Peace Agreement . The question is what the USA government as the guarantor of that Agreement intends to do should Čović's manipulation regarding the BiH Election Law actually lead to the creation of the third entity and abolition of the Dayton Agreement? The international community should make up its mind – does it want a multiethnic state or the division of BiH into ethnic territories and its eventual disintegration.
The international community's new options
Analysts have noted that the international community is intensively considering several new options, as it has become obvious that the constitutional changes cannot be implemented before 2018 general election despite intensive talks about certain models of the April and Butmir package. The decision of the Constitutional Court cannot be implemented and must enter the parliamentary procedure, which further complicates the already confusing and illogical decision.
The IFIMES International Institute will continue to monitor closely the factors that influenced the approval of Ljubić's appeal by the Constitutional Court, including the regional political backstage games. The international community's priority is the implementation of three judgements of the European Court of Human Rights (ECHR) in the Sejdić-Finci, Zornić and Pilav cases and decisions of the BiH Constitutional Court regarding the city of Mostar. Why should the international community give priority to the decision of the BiH Constitutional Court regarding Ljubić's appeal over the implementation of the decision in the Sejdić-Finci case which has not been implemented for almost nine years? Why should the alleged rights of Croats have priority over the rights of Jews, the Roma, women or persons of other constitutive nations living in another entity who have also been waiting for years for their ECHR judgements to be implemented? The citizens of Mostar have been waiting for local election since 2008, so this should be the international community's priority instead of the manipulative changes of the Election Law through CIK and the abuse of the House of Peoples of the Federation of BiH through Lex Čović. The coexistence and multicultural projects for the city of Mostar undertaken by Safet Oručević through the Centre for Peace and Multiethnic Cooperation, Centre on Critical Thinking and numerous similar civil society organisations may serve as an example for not only a regional but also an international strategy that would enable the implementation of democratic principles in the interest of all the citizens without undermining anyone's rights.
To this end the international community has several options up its sleeve, and the High Representative for Bosnia and Herzegovina (OHR) Valentin Inzko (OHR) has floated a trial balloon by repeating his earlier position from 2009 that BiH should have one president and two vice-presidents. If the candidate for the BiH Presidency does not win more than 50% of votes in the first election round the runoff should be held. The international community is preparing a package according to which Chairman of the Council of Ministers of BiH would come from the party with the highest number of seats in the BiH Parliament (there would be no rotation based on nationality since this is not the House of Peoples but a body of the executive power), the competences of the president and vice-president of Republika Srpska (RS) would be clearly defined (as in the Federation of BiH), vice-presidents of entities would be autonomous and would cooperate with the president of the entity when adopting the key decisions (till now there has been no cooperation between vice-presidents and the president of the Republika Srpska entity). Moreover, the key functions in entities (for example in Republika Srpska: the president, prime minister and chairman of the National Assembly of Republika Srpska; the same applies to the Federation of BiH) should be performed by persons from various ethnic communities and not only from one ethnic community as has been the case till now. Of course this would require certain constitutional amendments. The House of Peoples should be established in both entities, while the Council of Peoples in Republika Srpska should be abolished. The formation of ethnic constituencies should be prevented in the Federation of BiH (each vote has the same weight), while special attention should be paid to the election of members of BiH Presidency (of the Bosniak and Croat nationality). In elections for mayors the runoff should be held if no candidate wins more than 50% of votes in the first election round. A solution should be found for the representation of the Bosnian-Herzegovinian diaspora in the Parliamentary Assembly of BiH.
An even geographical representation of delegates to the House of Peoples of the Federation of BiH should be ensured in line with the sovereignty of all the cantons in the Federation of BiH.
The international community should not bow to the pressures from Dodik and Čović. The Constitutional Court decision regarding Ljubić's appeal should be returned into parliamentary procedure, as was written in the decision of the Constitutional Court, and CIK should not be allowed to destabilise BiH and enable Čović and the Herzegovinian lobby to create the third entity and disintegrate Bosnia and Herzegovina.
Is CIK contaminated or compromised?
The nationalistic structures in Bosnia and Herzegovina often stress and bolster the notion of constitutive nations and their representation, deliberately ignoring the citizens. This points to the issue of ethnic affiliation and opens the question of how to prove it, bearing in mind that for example Dragan Čović (who now claims to be a Croat) stated a different ethnic nationality in the past.
The IFIMES International Institute wanders whether the existing members of the Central Election Commission are capable of conducting a fair election in 2018, bearing in mind that they have contaminated and compromised themselves with their activities and actions, especially in the recent period. It would be necessary to change the present composition of CIK headed by Irena Hadžiabdić who one-sidedly dealt with the illegitimate and unconstitutional amendments to the Election Law although it is clearly stated in the Constitutional Court decision that this is the competence of the legislative body, i.e. the Parliamentary Assembly of BiH. The Constitutional Court decision was adopted in 2016, so there has been plenty of time to confirm the amendments to the Election Law, including the necessary changes to the Constitution of BiH and of the two entities (Federation of BiH and Republika Srpska). Moreover, it is usual practice not to adopt the election law (which is the most important legal act apart from the Constitution) in the year when election is held, let alone right before calling the general election.
Analysts believe that priority should be given to the implementation of the European Court of Human Rights judgements. No one has the right to blackmail the voters in BiH by deciding whether the election would be held or under what conditions – the state institutions of Bosnia and Herzegovina should sanction the responsible persons. For six years the 90,000 citizens of Mostar have been deprived of their basic human right – the right to vote and be elected to local government bodies. This represents a violation of the European Convention on Human Rights and Fundamental Freedoms, which could easily be proven before the European Court of Human Rights.
Ljubljana, 9 March 2018
 The public debate was held on 29 September 2016. It was attended by the represenatives of the applicant, the representatives of the House of Peoples of the Federation of BiH, the representatives of the Central Election Commission, the representatives of the OSCE Mission to Bosnia and Herzegovina and Dr. Zvonko Miljko from the Faculty of Law of the University of Mostar. OHR had submitted its opinion to the Constitutional Court of BiH before the public debate.