The necessity of the Election Law changes in Bosnia and Herzegovina *

By Ahmed Kulanić

The Election Law of Bosnia and Herzegovina, drawing its basic principles from the Constitution of BiH, has since its first adoption until now passed through changes that caused a total of 20 amendments, out of which only four after the first judgment of the European Court of Human Rights (Sejdić-Finci vs. BiH) in 2009.

Although in the past period, at some time intervals as one of the issues on the path of Bosnia and Herzegovina's accession to the European Union, the resolution of the issue of ECHR judgments (Sejdić-Finci, Zornić, Pilav) was seen as condition, since the beginning of the British-German initiative until December 1st 2016, and the decision of the Constitutional Court of BiH (U-23/14) on the discriminatory provisions of the Election Law, this issue and its resolution were left aside.

Furthermore, the absence of an agreement as well as the inability to adopt amendments to the Election Law in the Parliamentary Assembly of Bosnia and Herzegovina, even six months after the first decision, resulted in the new decision of the Constitutional Court of BiH (U-3/17) on 6th of July 2017. Decision of the Constitutional Court of BiH published in the Official Gazette of BiH No. 54/17 dated 28.07.2017. the provision of Article 10.12 paragraph (2) of the Election Law of Bosnia and Herzegovina in the part: "Every constituent people shall be given a place in each canton", the provisions of Article 20.16A paragraph (2) item a. to j., ceased to be valid as of July 29, 2017.

The aforementioned decisions of the Constitutional Court of Bosnia and Herzegovina again reassessed to the big door the focus of domestic politicians, both the international community and the people of Bosnia and Herzegovina from the economic ones (which was referred to as the primary focus of the activities of inter-ethnic communities and local politicians for the period 2015-2018 ) to the constitutional-legal issues, questions of legitimacy, constitution, political representation, changes of the Electoral Law, as well as constitutional administrative settlement.

The difference between the EHRC judgments in the cases of Sejdić-Finci, Zornić and Pilav on one hand and the decision of the Constitutional Court of Bosnia and Herzegovina in Ljubić case is reflected in the fact that the Constitutional Court, as a mechanism for implementing its decision, determined that articles of the Electoral Law should be brought to an end, while in the afore three cases declared as irreconcilable. This different approach of the Constitutional Court of BiH can be understood in the context that the first three cases were related to the inconsistency and discrimination in the Constitution of BiH, which are contrary to the European Convention, while the Ljubić case disputes the disputable provisions of the Election Law in accordance with the current Constitution of BiH, regardless of the fact that it is as such discriminatory. This position of the Constitutional Court of BiH further concludes that for the implementation of ECHR judgments in Bosnia and Herzegovina, it is first necessary to amend the existing Constitution of BiH, and only then to end the discriminatory provisions of the Election Law of BiH, as stated in their decision:

"In the light of the above, it is undisputed that the execution of the Sejdić and Finci decision, which is expressly stated in the Statement, as well as the decision in the Zornić cases and Pilav, as pointed out by the Constitutional Court in Decision No. U 14/12, the provisions of the Constitution of BiH which were found to be discriminatory need to be changed, and only after that the corresponding amendments to the Election Law should be made "(54/17, para. 36).

This position of the Constitutional Court of BiH, and the understanding of the priority of the amendment of the BiH Constitution in relation to the amendments of the BiH Election Law must be understood as an imperative to both domestic politicians and representatives of the international community in terms of the democratization of Bosnia and Herzegovina and its path of harmonization of the Constitution in the process of the integration into European constitutional and legal framework. Therefore, any future amendment to the Election Law should be subordinated and conditioned by the changes of the current discriminatory clauses of the Constitution of BiH, especially because during or after the 2018 election (and all subsequent elections) Bosnia and Herzegovina could face additional cases such as Pudarić v. BiH or Mulic v. BiH. These cases could again result in the judgments of the European Court of Human Rights against Bosnia and Herzegovina, but whose implementation could have the same epilogue as the previous three.

Furthermore, the provisions of the BiH Election Law regarding the composition of the House of Peoples of the FBiH, as well as the RS Council of Peoples, prescribe the equal (parity) number of representatives of constituent peoples while at the same time gives smaller number of seats to the Others.  The difference in terms of regulations between the RS People's Council and the House of Peoples of FBiH, apart from differentiation in the competencies of the same, is also reflected in the fact that a member of the electoral law of the RS Council of People (Article 11.10) lists the parity as the basis for the division of mandates between constituent peoples in the Election Law while the House of Peoples of the FBiH does not explicitly state the principle of parity, although the number of delegates of the constituent peoples shows it. However, what is often overlooked in the Election Law is not the question of the mutual parity of the constituent peoples, but the fact that the "Others" as well as "the citizens of BiH" as a constitutional category under the Preamble of the Constitution of BiH do not equally participate in the distribution of the number of delegates in these institutions (7 in the FBiH and 4 in RS). In accordance with this decision, the Election Law of BiH in these two institutions, while advocating the principle of parity, also uses the principle of proportionality, which ultimately could open the issue of proportional representation of the constituent peoples in accordance with the characteristics of consociational democracy, according to which the state as a whole is basis (unit) for the determination of proportionality and not its internal administrative units. Furthermore, one of the questions that arises is whether the "Other" as well as "the citizens of BiH" representing the constitutional categories must have parity representation in the laws of Bosnia and Herzegovina, or the principle of proportionality that is already applied in relation to them should be applied to the constituent peoples as well? Therefore, in the near future, it might be expected that the "Other" will start court procedure in relation to the issue of parity distribution of the number of delegates in the institutions in BiH.

Also, another additional question posed here, which is related to parity, is whether entities as administrative units in Bosnia and Herzegovina must be represented in this respect, and in terms of the way in which they are organized or the administrative-functional division of power in them, but also the issue of the parity of the entity institutions and their competencies. In this context, one must understand the invitation of four parties (SDA, SDP, SBB and DF) to establish symmetrical solutions regarding the House of Peoples of the FBiH and the Council of Peoples of the RS. Furthermore, if the Entity parity was established, one of the models would be either "Cantonizationof RS" or "Republicanization of the Federation", while the vital national interests of the people, in accordance with the BiH Constitution, would be resolved at the state level to which it belongs.

Disclaimer: The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the official policy or position of the Balkan Studies Centre (BSC).

* Originally written in Bosnian language within the project "Bosna i Hercegovina i Berlinski proces: Analiza stanja ključnih procesa u BiH pred Londonsku konferenciju 2018" [Bosnia and Herzegovina and the Berlin Process: Analysis of Key Processes in BiH prior to the London Conference in 2018], Balkan Studies Center (BSC).