BiH on the Verge of Adopting a New Election Law "Lex Čović"

The International Institute for Middle Eastern and Balkan Studies (IFIMES) from Ljubljana, Slovenia, regularly analyzes events in the Middle East and the Balkans. IFIMES has prepared an analysis of the possible consequences of the announced selective changes to the election law on the occasion of the announced changes, i.e., the adoption of a new Election Law in BiH. We highlight the most important and interesting parts from the analysis "BiH and the New Election Law: BiH on the Verge of Adopting a New Election Law 'Lex Čović'."

The Central Election Commission (CEC) of Bosnia and Herzegovina is once again at the center of a scandal, this time related to attempts to unconstitutionally change the Election Law of BiH in cooperation with political options that systematically undermine the existence and integrity of Bosnia and Herzegovina. The duo Milorad Dodik (SNSD – Alliance of Independent Social Democrats) and Dragan Čović (HDZ – Croatian Democratic Union), key leaders of the mentioned political options, will try to use the upcoming General Elections in BiH, scheduled for October 7, 2018, to create/escalate a crisis situation that would serve them to break up Bosnia and Herzegovina.

The scandal with the CEC of Bosnia and Herzegovina is the culmination of long-term anti-state attacks and interference by the Dodik-Čović duo in the most important state structures, with strong support from Serbia and Croatia; from long-term attacks on the defense system of BiH – the Armed Forces of BiH, the Intelligence-Security Agency (OSA) of BiH, the Ministry of Security of BiH, the State Investigation and Protection Agency (SIPA), to attacks on the prosecutorial-judicial system of BiH, including the Constitutional Court of BiH, but also the constitutional courts of the entities. Attacks on the institutions of Bosnia and Herzegovina are also simultaneous attempts to take control of these institutions. The mentioned Dodik-Čović duo, with the support of other political options, controls the High Judicial and Prosecutorial Council (HJPC), the Prosecutor's Office and Court of BiH, the Ministry of Defense of BiH, the Central Election Commission of BiH, and most dangerously, today, in a certain sense, the Constitutional Court of BiH. It should be recalled that it was precisely the Constitutional Court of BiH that annulled the previous decision and intervention of the OHR on the Constitution of the FBiH by accepting the appeal of Božo Ljubić (HDZ), then the Speaker of the House of Representatives of the Parliamentary Assembly of BiH, which is the strongest blow to the actions of the international community, but also to Bosnia and Herzegovina, to date.

The current actions of the CEC are merely a criminal attempt to implement the decision of the Constitutional Court of BiH, which accepted Božo Ljubić's appeal, because the "duo" failed to impose the said decision of the Constitutional Court of BiH through the parliamentary procedure of BiH (which was determined by the Constitutional Court of BiH). The OHR's opinion was not respected by the Constitutional Court of BiH, even though the OHR's opinion was absolutely against Božo Ljubić's proposal: "We note in this regard that the appellant challenged certain provisions of the Election Law, without challenging the provisions of the Constitution of the FBiH. We assert that the provisions of the Election Law are in accordance with the principles established in the Constitution of the FBiH and that different provisions of the Constitution of the FBiH have internal consistency and must be applied simultaneously, including specifically through the Election Law of BiH."

In making their decision, the judges of the Constitutional Court of BiH legally ignored the position and opinion of the OHR and used only those "arguments" that favored their decision or Ljubić's appeal. In doing so, the principle of legitimate representation of the people, derived from European legal tradition, was completely disregarded. According to this principle, the people are understood as "demos," i.e., the sum of all inhabitants within a certain state. Therefore, within this legal tradition, legitimate representation of the people means elected representatives whose number is proportional to the total number of inhabitants, regardless of their ethnic identity. Within European legal tradition, there are no a priori "legitimate representatives" of ethnic communities. In multi-ethnic societies, there is a practice of introducing a bicameral parliamentary system as a corrective element to ensure equality in the representation of ethnic communities, and therefore, the upper house usually introduces parity in their representation. However, the principles of parity and proportionality are absolutely mutually exclusive and cannot be mixed, as Božo Ljubić does in his proposal, and whose logic is accepted by both the Constitutional Court of BiH and the CEC.

Therefore, ethnic communities must be represented in the House of Peoples on the principle of parity, and this is an absolute condition. Thus, any reference to the principle of proportionality in elections within units (cantons/counties) from which representatives to the House of Peoples are elected is simply not logically sustainable: each ethnic community must have an equal number of representatives in this House. In this regard, the category of so-called "Others" would also have to be represented by the same number of representatives as the so-called three constituent peoples, because parity is an absolute condition, and there is no reason why "Others," as a constitutionally recognized category, would be represented outside the principle of parity. Unfortunately, Article 8 of the Constitution of the Federation of BiH is ambiguous in this regard and allows for manipulations such as those undertaken by Ljubić, which were accepted by the Constitutional Court of BiH and the CEC:

(1) Delegates to the House of Peoples of the FBiH are elected by the cantonal assemblies from among their delegates in proportion to the national structure of the population.

(2) The number of delegates to the House of Peoples of the FBiH elected in each canton is proportional to the number of inhabitants in the canton, with the number, structure, and method of electing delegates being determined by law.

If the House of Peoples of the FBiH is based on the principle of parity, and that is its primary function in order to ensure equality, then representation "in proportion to the national structure of the population" necessarily falls away as a condition: either ethnic communities are represented on the principle of parity, or they are represented on the principle of proportional representation within the structure of the total population. Furthermore, if the provision that the number of delegates elected in each canton is proportional to the number of inhabitants in the canton were to be respected, this would also violate the principle of parity representation of cantons: cantons with a larger population would then have to have a larger number of representatives compared to cantons with a smaller population, so the principle of parity representation of ethnic communities could not be realized again.

However, instead of the Constitutional Court of BiH considering and calling for the elimination of these contradictions within the Constitution of the Federation of BiH itself, the Constitutional Court of BiH accepts logical and legal manipulations within which proportional and parity representation are continuously mixed, thus accommodating the policy of HDZ BiH, which demands parity in all situations where Croats represent a clear statistical minority, while demanding proportionality in all cases where Croats can achieve even the slightest statistical majority. Of course, HDZ has the right to its own deceptions and manipulations, but the Constitutional Court of BiH and the CEC do not have the right to fall for them and to disregard the fundamental constitutional principle according to which parity and proportionality are absolutely mutually exclusive, so that one house of Parliament can be elected exclusively on the principle of proportionality, and the other house exclusively on the principle of parity.

A representative of the CEC was invited to the public debate before the decision was made to present the opinion and position of the CEC, but the representatives of the CEC did not present the CEC's stance at the public debate; instead, they presented their personal views on the matter. Furthermore, representatives of the Parliamentary Assembly of BiH, who are blocked by HDZ, did not attend the public debate, but Lidija Bradara (HDZ), Speaker of the House of Peoples of the Parliament of the Federation of BiH, ensured their presence and expressed the opinion that this House should support Ljubić's appeal. In her presentation, the representative of the House of Peoples of the FBiH stated that she supports the appeal and referred to the shortcomings in the functioning of the House of Peoples, as stated in the decision of the Constitutional Court of BiH.

The competent authorities of the Federation of BiH should determine how and with whose permission the House of Peoples of the FBiH could support Ljubić's appeal at the public debate, knowing that Bosniak political options are against Ljubić's appeal. Likewise, the position and opinion of the Venice Commission (European Commission for Democracy through Law) have been misinterpreted and tendentiously interpreted by the Constitutional Court of BiH, even though the Venice Commission stated, "it appears that the system under the Constitution of the Federation is in line with European and other international standards in the field of elections, and since the Election Law of BiH intends to implement the relevant provisions of the Constitution of the Federation of BiH, it also appears that the system is in line with these standards." Furthermore, although the Venice Commission stated that Ljubić's appeal cannot rely on the standards of European electoral heritage for the election of delegates to the House of Peoples of the FBiH, the Constitutional Court of BiH has absolutely ignored not only these provisions but also all positions of the OHR and the Venice Commission.

Lex Čović

Dragan Čović wants another term in the Presidency of BiH and wants to ensure the de facto division of BiH before the General Elections in 2018, now in cohabitation with the CEC, which is supposed to ensure the division of BiH and elections tailored to HDZ and Dragan Čović. Within HDZ, this subversive attempt to change the election law is already called "Lex Čović." Čović already has a "green light" within HDZ to try to produce and escalate a crisis situation and return to the state that preceded the Washington Agreement, i.e., the Owen-Stoltenberg Plan, which envisaged the division of BiH into three ethnic entities. This would permanently destroy the original Dayton Peace Agreement, based on the existence of the Federation of BiH, previously created by the Washington Agreement. A return to the Owen-Stoltenberg Plan, along with the creation of a "third entity," represents a clear destruction not only of the Dayton Constitution but also of the Dayton Peace Agreement itself.

We wonder what the guarantor of this agreement, the Government of the United States of America, intends to do if Čović, through manipulations related to the Election Law of BiH, truly succeeds in creating a "third entity" and thereby destroying the Dayton Peace Agreement itself? The international community must decide whether it wants a multi-ethnic state or the division of BiH into ethnic territories and its final disintegration.

New Options for the International Community

Analysts believe that several new options are being intensively considered within the international community, as it is evident that constitutional changes cannot be implemented by the General Elections in 2018, although some models of the "April and Butmir Packages" are being intensively discussed. The implementation of the decision of the Constitutional Court of BiH on Božo Ljubić's appeal is impossible and requires a parliamentary procedure, and the decision of the Constitutional Court of BiH that the implementation of the decision should go through the Parliamentary Assembly of BiH has further complicated an already confusing and illogical decision. The International Institute IFIMES will, in the coming period, also address the details that preceded and were decisive in accepting Ljubić's appeal to the Constitutional Court of BiH, which also include regional political behind-the-scenes games. The priority of the international community is the implementation of three judgments of the European Court of Human Rights: "Sejdić and Finci," "Zornić," and "Pilav," and the judgment of the Constitutional Court of BiH regarding Mostar. Why would the Decision of the Constitutional Court of BiH on Božo Ljubić's appeal be a priority for the international community's implementation when the implementation of the "Sejdić-Finci" judgment has been awaited for almost nine years?! Why would the alleged rights of Croats have priority in resolution, today in a criminal manner through the CEC, and not the rights of Jews, Roma, women, or persons from constituent peoples living in the other entity, when these are judgments of the European Court of Human Rights and have been awaited for years? The city of Mostar has been waiting for 5 local elections since 2008, and this must be the priority of the international community, not criminal changes to the Election Law through the CEC and the abuse of the House of Peoples of the Parliament of the Federation of BiH orchestrated by Dragan Čović – "Lex Čović." Projects on community and multiculturalism in the city of Mostar, implemented by Safet Oručević through the Center for Peace and Multietnic Cooperation, the Center for Critical Thinking, and several other similar civil society organizations, are an example not only for regional but also for international policy on how to persevere with the most democratic principles without endangering anyone's rights, while simultaneously working in the interest of all citizens of Mostar. In this regard, the international community is preparing several variants, and the High Representative Valentin Inzko (OHR) has, as a "test balloon," reiterated his earlier stance from 2009 on one president and two vice-presidents in BiH. The international community is preparing a package for the Chairman of the Council of Ministers of BiH to come from the party with the most representatives in the BiH Parliament (there is no national rotation system, as it is not the House of Peoples but the executive branch), to establish clear competencies for the president and vice-presidents of Republika Srpska (RS) (similar to FBiH), that the vice-presidents of the entities are independent and have connections with the president of the entity when making key decisions, and not as it is now, they have no connection with the president of the Republika Srpska (RS) entity. Also, key functions in the entities, such as in Republika Srpska (President of RS, Prime Minister of RS, and Speaker of the National Assembly of RS), must be held by persons from different ethnic communities, not from the same ethnic community as is currently the case, and this must be included in the new constitutional changes. The same applies to FBiH.

Introduce the House of Peoples in both entities, and abolish the Council of Peoples in RS, because it is an asymmetry compared to FBiH. In FBiH, prevent the creation of ethnic electoral units (every vote equally valuable), with special attention to the election of members of the Presidency of BiH (Bosniak and Croat). It is necessary to consider and find a solution for the Bosnian-Herzegovinian diaspora to be represented in the Parliamentary Assembly of BiH. For the House of Peoples of FBiH, it is also necessary to ensure uniform geographical representation of delegates by cantons, as sovereignty is exercised throughout the territory of FBiH. The international community must not yield to the pressure of the Dodik-Čović duo, and the Constitutional Court's decision regarding Ljubić's appeal should and must be returned to the parliamentary procedure, as written in the Constitutional Court of BiH's decision, and not through criminalization via the CEC, attempt to destabilize BiH and enable Čović and the Herzegovinian lobby the possibility of creating a third entity and destroying the state of BiH.

Is the CEC Contaminated and Compromised?

In Bosnia and Herzegovina, nationalist structures in particular often emphasize and highlight the constitutionality of peoples and their representation, consciously ignoring the 6 citizens. The question of ethnic affiliation is raised as justified, and what constitutes proof of a certain ethnic affiliation, given that Dragan Čović himself (who now declares himself a Croat) declared himself differently in the past. He is not the only and isolated example. The International Institute IFIMES raises the question of whether the existing structure of CEC members has the potential to conduct fair and honest General Elections in BiH in 2018, because through its work so far, and especially in the recent period, it has contaminated and compromised itself.

We believe that it is necessary to replace the composition of the current CEC, headed by Irena Hadžiabdić, because she herself has engaged in an illegal and unconstitutional resolution of the problem of adopting a new election law, and it is clear from the pronouncements of the Constitutional Court of BiH's decision that the legislative body, i.e., the Parliamentary Assembly of BiH, must do this. The decision of the Constitutional Court of BiH was made in 2016, and there has been more than enough time to establish amendments to the Election Law of BiH, which requires amendments to the Constitution of BiH, and the entities FBiH and RS. Furthermore, it is the practice that the election law, which is the most important legal act after the constitution, is not adopted in an election year, let alone before the announcement of the General Elections in 2018.

Analysts believe that it is necessary to prioritize the implementation of the judgments of the European Court of Human Rights from Strasbourg. The institutions of the state of BiH must take into account and sanction those responsible, because no one has the right to blackmail voters in BiH regarding whether and what kind of elections there will be. Thus, 90,000 citizens of Mostar have been denied the basic human right for six years – to elect and be elected to local self-government bodies, because the European Convention on Human Rights and Fundamental Freedoms is being violated against them, and this could easily be proven at the European Court of Human Rights.