More on Bosnia’s election law

Slaven Kovačević writes:

Still another meeting about possible changes of the Election Law of Bosnia and Herzegovina has ended without agreement, which some will consider bad. I think this is the best solution at the moment, because it is not true that without agreement implementation of the future electoral results will be impossible.

That claim is based on the Croatian Democratic Union (HDZ) incorrect interpretation of the Constitutional Court’s Ljubić decision. The intention is to create pressure for changes to the BiH Election Law that advantage the HDZ, diminishing the basic human rights of a significant number of citizens of Bosnia and Herzegovina who live in environments beyond the HDZ’s direct political control.

In addition, the HDZ demands that the Election Law be amended to include election of members of the BiH Presidency, whereas the Constitutional Court of BiH rejected that part of the Ljubić appeal. The HDZ also abuses the Venice Commission, which at the end of its opinion made it clear that the current system for choosing members of the Federation House of Peoples is in line with the European electoral principles and standards.

The HDZ arguments are political in nature and not legal. The basic question is this: is the Federation formed from cantons or peoples, as HDZ claims? Under the Washington Agreement, the Federation of BiH is composed of federal units, later established in the Constitution as cantons. Here is an extract from the original Washington Agreement:

Bosniacs and Croats, as constituent peoples (along with others) and citizens of the Republic of Bosnia and Herzegovina, in the exercise of their sovereign rights, transform the internal structure of the territories with a majority of Bosniac and Croat population in the Republic of Bosnia and Herzegovina into a Federation, which is composed of federal units with equal rights and responsibilities.

The choice of delegates to the House of Peoples is based on the implementation of Annex VII of the Dayton Peace Agreement (return of all expelled citizens to their pre-war homes). As long as this process is not completed, the 1991 census is to be applied, in order to avoid legalizing the results of genocide and ethnic cleansing. This is a constitutional provision that cannot be put out of force unless someone, like the High Representative (HR) or a competent state body, declares the return of expelled citizens ended. As this has not happened, this current legal norm remains in force. The current system under the FBiH Constitution is in line with the judgments of the European Court of Human Rights in Strasbourg. The BiH Constitutional Court cannot contradict the European Court.

All citizens of the Federation of BiH must fully enjoy their civil and political rights, more precisely to elect and be elected to all legislative organs. The HDZ wants a consociational democracy, but one not based on the proportion of Croats throughout the country but rather one based only on  four cantons that the HDZ controls. The HDZ’s efforts to change the BiH Election Law were motivated by their wish to legally mark part of Bosnia and Herzegovina’s territory as a “third entity.” Croatia and Russia support these efforts, in contradiction to the Dayton Peace Agreement, jeopardizing the entire political system.

The idea of blocking implementation of the election results is political, not legal. The earlier, 2011 HDZ effort to block implementation of electoral results led to the intervention of the High Representative. Annex 10 of the Framework Dayton Peace Agreement would still require the High Representative to intervene again to secure fair and democratic elections in Bosnia and Herzegovina, which means that he would then be obliged to intervene again.

The elections last until the moment of implementation of the electoral results, which are an integral part of the electoral process. It is  important to relieve the public of unnecessary fears about changes to the Election Law of BiH and devote efforts instead to announcing, holding and implementing elections. This would enable other, more important issues to be discussed, such as the motives of tens of thousands of young citizens of Bosnia Herzegovina who leave Bosnia every year and seek for their better life abroad.