Išerić: Schmidt is the biggest international disaster for democracy in BiH

By Enver Išerić

Media report that the High Representative in Bosnia and Herzegovina, Christian Schmidt, sent a letter to the European Court of Human Rights in which he "advises" that the Grand Chamber not confirm the Kovačević ruling. Among other things, he writes:

"If it is concluded that this framework can only be reconciled with the convention to the detriment of power-sharing mechanisms, this could further undermine the already fragile foundations of BiH," Schmidt wrote.

Schmidt fears the amendment of the Constitution of Bosnia and Herzegovina. He knows why he is afraid. And we – the citizens of Bosnia and Herzegovina – know too. And it is not just him who is afraid. His mentors have the same kind of fear. And we must say that their fear is completely unjustified. In fact, perhaps it is not fear. Perhaps it is a continuation of the war against Bosnia and Herzegovina.

What kind of country does Schmidt want to "tailor" for us? Full of discrimination, divisions, and ineffective institutions. From the letter he sent to the European Court, it can be concluded that the High Representative would suggest annulling all previously made rulings before this court. Instead of making maximum efforts to implement all the rulings made and to ensure the highest degree of human rights provided for by international documents, he wants to destroy democracy and human rights in our country to the ground.

Schmidt is the biggest international disaster for democracy in Bosnia and Herzegovina. He thinks we don't know what a state is, what a constitution is, or what human rights are. He thinks we have no solutions. We have solutions and we know what our country should be like. And we will insist on that very strongly. Nothing and no one will waver or discourage us.

It should be emphasized that the Constitution of Bosnia and Herzegovina, adopted under the auspices of the international community, is unsustainable, as many of its provisions are in direct conflict with the provisions of the European Convention on Human Rights and Fundamental Freedoms, which, according to the Constitution itself, should be applied. Thus, for example, the provisions of the Constitution of Bosnia and Herzegovina (Article 2.4) speak of the absence of discrimination against citizens of Bosnia and Herzegovina on any grounds (sex, race, skin color, language, religion, political or other opinions, national or social origin, belonging to a national minority, property status, or status acquired by birth), while in the provisions concerning the election of delegates to the House of Peoples of the Parliamentary Assembly, as well as members of the Presidency, this discrimination is evident.

Such discrimination is the result of the unjust and dysfunctional division of Bosnia and Herzegovina into entities. They are, as Prof. Ibrahim Festić points out, a factor that prevents the existence of human rights in Bosnia and Herzegovina, because their ethnic formation is contrary to the essence of human rights, which prioritize the individual. The rights and freedoms of the individual and ethnically formed government do not go together at all.

The amendment of the Constitution of Bosnia and Herzegovina is inevitable, and it is particularly necessary to emphasize the fact that it is being recognized in international circles that the Dayton Agreement has "nailed down" the results of forcibly carried out ethnic cleansing and the creation of ethno-national spaces, and that entity governments are carrying out discrimination and segregation of returnees, thereby directly preventing the return of refugees and displaced persons to their homes.

If the representatives of political parties and constituent peoples, as well as other citizens of Bosnia and Herzegovina, truly want to work for the benefit of all of them, then it is completely clear that the Constitution of Bosnia and Herzegovina needs to be amended to make Bosnia and Herzegovina a modern democratic state. Amendments to the constitution should ensure the highest degree of human rights for all its citizens, establish the basic principles from which state power is derived and shaped, the method of their election and their responsibilities, the scope of their work and decision-making methods, and establish the principles on which territorial units of the middle level of government should be organized.

These are groups of legal norms of constitutional law that regulate the most important issues of the state and its citizens.

Practice has shown that the Constitution of Bosnia and Herzegovina has serious shortcomings in all of the above-mentioned issues, and it is necessary to address these shortcomings, which can be achieved through serious political and expert analyses and the finding of compromise solutions, but not to the detriment of the state of Bosnia and Herzegovina, but to its benefit and the benefit of all citizens.

If it is clear to everyone in Bosnia and Herzegovina that there are no further divisions, and it should be so, then this is the only logical path. Therefore, instead of demands to review the Kovačević ruling, efforts should be made to amend the Constitution of BiH and its entities in a professional and systematic manner.

If all three constituent peoples and other citizens are constituent throughout the entire territory of Bosnia and Herzegovina, and they are, then Article I, 3 of the BiH Constitution should read:

3. Composition

Bosnia and Herzegovina consists of two entities: the Federation of Bosnia and Herzegovina and Republika Srpska (hereinafter referred to as entities) and Brčko District.

Entities shall have legislative, executive, and judicial power.

The legislative body of an entity shall consist of two chambers: In each entity, the House of Peoples shall have the same number of delegates. Decisions in the House of Peoples of an entity shall be made according to the same principle as decisions are made in the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina.

The positions of the chairpersons of the chambers of the legislative bodies of the entities, the Prime Minister of the entity, and the President of the entity shall belong to different constituent peoples and other citizens. The chairpersons of the legislative and executive bodies of the entities shall have deputies who are not from the same constituent people as the chairperson.

The distribution of other key positions shall be determined by a special law by the legislative bodies of the entity.

Bosnia and Herzegovina is also obliged to harmonize its Constitution with the rulings of the European Court of Human Rights.

Therefore, it is necessary to amend the constitutional provisions concerning the composition of the House of Peoples and the method of electing delegates and members of the Presidency of Bosnia and Herzegovina, but in such a way that other citizens, who do not belong to the constituent peoples, are also enabled to be members of these bodies. It is necessary to avoid formulations that would prevent their actual participation in these bodies, and there are such proponents. The Sejdić-Finci ruling itself, as well as other ECtHR rulings, speak of the obligation to ensure equal rights for all citizens, which means that the right to run for all public office must be ensured for Bosniaks, Croats from RS, and Serbs from FBiH.

Therefore, Article IV 1. of the Constitution should read:

Article IV 1.

The Parliamentary Assembly shall have two chambers: the House of Peoples and the House of Representatives.

1. House of Peoples

The House of Peoples shall consist of 20 delegates (including five Croats, five Bosniaks, five Serbs, and five from among others)

Delegates from among the constituent peoples and from among others in the House of Peoples shall be elected by delegates from among the constituent peoples and from among others in the House of Peoples of the National Assembly of Republika Srpska and the House of Peoples of the Parliament of the Federation of BiH.

The election of delegates from among the constituent peoples shall be carried out based on the 1991 population census in BiH, with at least one representative of each of the three constituent peoples and at least one representative from among others being elected from each entity.

b) Twelve members of the House of Peoples shall constitute a quorum, provided that at least three Bosniak, three Croat, three Serb delegates, and three delegates from among others are present.

In order to ensure more efficient decision-making in the BiH Parliamentary Assembly, and due to the fact that the procedure for decision-making in the House of Representatives itself ensures the protection of entities on every issue within the jurisdiction of Bosnia and Herzegovina, it is necessary to determine the issues that the House of Peoples will decide on, in order to protect the vital national interests of the constituent peoples and other citizens.

Thus, Article IV 3. b) should stipulate the following:

The House of Peoples shall decide on the decisions of the House of Representatives concerning issues of:

a) language

b) culture

c) education

d) religion

e) use and transport of natural resources

f) use and transport of state property

g) issues of army and police

Decisions in the House of Peoples shall be made by a majority of those present and voting, including at least two delegates from each of the constituent peoples and from among others.

Decisions in the House of Representatives shall be made by a majority of those present and voting, including at least one-third of the votes of members from the territory of each entity.

If we want to enable all citizens to run for members of the Presidency of Bosnia and Herzegovina, Article V 1. a) of the Constitution should read:

"a) Members of the Presidency shall be elected directly, with each voter voting to fill one position in the Presidency.

The composition of the Presidency shall be determined by summing the votes of all candidates from among the Bosniak, Croat, and Serb peoples, as well as candidates from among others, to obtain four sums.

The three highest sums shall determine from which constituent people and from among others the members of the Presidency will be.

The candidates from each of the candidate groups that have obtained a position in the Presidency based on the preceding paragraph, who have received the most votes, shall be elected to the Presidency.

Alternative: 1. Members of the Presidency shall be elected from the entities as follows:

The Presidency of Bosnia and Herzegovina shall consist of three members, with only one member from among the Bosniaks, Croats, Serbs, or from among others being elected.

One member shall be elected from the territory of Republika Srpska and two from the territory of the Federation of BiH, with each voter voting to fill one position in the Presidency from the list of candidates from among the Bosniak, Croat, and Serb peoples, as well as candidates from among others.

From the territory of Republika Srpska, the candidate who received the most votes from the list of the constituent people or the list of candidates from among others that received the most votes overall compared to other candidate lists shall be elected.

From the territory of the Federation of BiH, the candidates who received the most votes from the two lists that have the most votes overall compared to other lists shall be elected.

If the list of candidates from the same constituent people or from among others received the most votes in both entities, the candidate whose list received more votes and who has the most votes on that list shall be elected.

In the case of the preceding paragraph, from the entity in which the list of the same constituent people or from among others received fewer votes compared to the same list in the other entity, the candidate from the candidate list that is next in terms of votes in that entity shall be elected.“

The best solution would still be for Bosnia and Herzegovina to have one president. All citizens could run for that position, and everyone would elect him.

Similarly, it is necessary to improve the decision-making procedures in the BiH Presidency by referring the declaration of a Presidency decision as destructive to the vital national interest of the people from whom it was elected, not to the National Assembly of Republika Srpska and the House of Peoples of the FBiH, but to the Constitutional Court of BiH.

Article V 2.d) would read:

"d) A member of the Presidency who disagrees with a decision may declare the Presidency decision destructive to the vital interest of the people from whom they were elected, provided that they do so within three days of its adoption. Such a decision shall not take effect until the Constitutional Court of Bosnia and Herzegovina makes a decision, at the request of one of the members of the Presidency. A request for review of the Presidency's decision may be submitted to the Constitutional Court within five days of the decision's adoption. "

The issue of protecting the vital interests of the constituent people or other citizens who would not have their representative in the BiH Presidency remains open here, and it is necessary to consider the possibility that instead of declaring the Presidency's decision destructive to the vital interest of the people from whom they were elected, the member of the Presidency declares it contrary to the BiH Constitution, which establishes the rights of constituent peoples and other citizens.

After point c) of Article V 4), a new point 5 should be added, which would read:

"5. Distribution of key positions

The Chairperson of the Presidency, the Chairperson of the House of Representatives, the Chairperson of the House of Peoples, and the Chairperson of the Council of Ministers shall be from different constituent peoples and other citizens. The distribution of other key positions shall be determined by a special law by the Parliamentary Assembly of Bosnia and Herzegovina.“