Čović's claim that there are no conditions for holding elections is incorrect

SARAJEVO, (Patria) - HDZ BiH President Dragan Čović, as a guest on the central Dnevnik of Croatian Radio Television on January 30, 2022, commented on the recent negotiations regarding the Election Law of BiH, held in Neum.

When the host stated that the High Representative in Bosnia and Herzegovina, Christian Schmidt, announced that elections in BiH would be held in the autumn, regardless of whether the Election Law of BiH would be amended, Čović, noting that "many open issues remain," asserted, among other things:

Namely, the Constitutional Court of Bosnia and Herzegovina has annulled certain provisions of the Election Law, which would formally create a problem, as we had, if you remember, at one time regarding the organization of elections in Mostar. According to the same model, the Constitutional Court had also annulled some provisions at that time, so we do not have formal legal conditions for organizing elections. But, if we manage to agree on something specific, then we would have to make amendments to the Election Law in the BiH Parliamentary Assembly that would enable us to do so, so that we can say we have a democratic election process.

Istinomjer has analyzed Čović's statements. Regarding Čović's claim that there are no formal legal conditions for holding the General Elections in 2022, it should first be noted that in the period from the announcement of the General Elections in 2018 until today, except for the part related to the local elections in Mostar, there have been no amendments to the Election Law of BiH, and in the manner and under the conditions under which the General Elections in 2018 were held, there are no legal obstacles for them to be held in 2022.

We remind you that after previous negotiations failed to yield results, and proposals sent to the parliamentary procedure did not receive the necessary support, the Central Election Commission of Bosnia and Herzegovina (CEC BiH), in accordance with its powers, announced the General Elections in May 2018, which were held on October 7, 2018.

Previously, by a decision of the Constitutional Court of BiH at the request of Božo Ljubić for an assessment of the constitutionality of the provisions of the Election Law of BiH, it was determined, among other things, that the provision of Subchapter B of Article 10.12, paragraph (2) in the part "Each constituent people is given one seat in each canton" and the provisions of Chapter 20 – Transitional and Final Provisions, Article 20.16.A, paragraph (2), points a-j of the Election Law of Bosnia and Herzegovina are not in accordance with Article I/2 of the Constitution of Bosnia and Herzegovina.

The Constitutional Court of BiH thereby ordered the Parliamentary Assembly of BiH to harmonize the Election Law with the Constitution of BiH within six months of the delivery of this decision, which the highest legislative body in BiH did not do, and the disputed provision was deleted from the Election Law of BiH six months after the adoption of the said decision of the Constitutional Court of BiH.

In this regard, after the announcement of the General Elections in 2018, the CEC BiH, at its session held on December 18, 2018, adopted a decision on the method of filling the House of Peoples of the Federation of BiH Parliament based on which the 2013 census would be used and the 1/1/1 principle applied, which means that there will be at least one Bosniak, one Serb, and one Croat from each canton in the House of Peoples of the FBiH Parliament if they are elected.

The legal basis for the adoption of such a decision by the CEC BiH is found in Article 10.12, paragraph (1) of the Election Law of BiH, which states:

The number of delegates from each constituent people and from among the others, who are elected to the House of Peoples of the Federation of BiH from the legislative body of each canton, is proportional to the number of inhabitants of the canton according to the last census. The Central Election Commission of BiH determines, after each census, the number of delegates to be elected from each constituent people and from among the others, who are elected from the legislative body of each canton.

Before the adoption of the mentioned decision by the CEC of BiH, the Office of the High Representative (OHR) in BiH, as an "ad hoc international institution responsible for monitoring the implementation of the civilian aspects" of the Dayton Peace Agreement, among other things, stated that "regarding the content of the Central Election Commission's decision, the High Representative's opinion is known from before and has not changed":

Our position regarding the House of Peoples of the Federation and the application of the Constitution of the Federation of BiH, which we have repeated on several occasions, has always been principled: until the completion of electoral reform, the Constitution of the Federation of BiH should be applied in its entirety, both regarding the census and the so-called 1/1/1 rule. Allowing the Election Law of BiH to take precedence over the Constitution of the Federation of BiH, in the part concerning the composition of the institutions of the Federation, can have very serious implications for the future.

Thus, in accordance with the valid constitutional and legal legislation and the decisions of the CEC BiH, the General Elections in 2018 were held, and among others, HDZ BiH participated in them.

Regarding the holding of the General Elections in 2022, the OHR, or rather the current High Representative in BiH, Christian Schmidt, has once again, "calling on all political forces in BiH to work constructively on a new election law," confirmed that "there is a valid election law that precisely regulates elections," and that, "in the event that there are no amendments to the Election Law, the elections will be held in the autumn of 2022, in accordance with the provisions of the existing law."

Elections must reflect the will of the voters, and a modern election law that ensures transparent elections according to established democratic standards and in accordance with the decisions of the European Court of Human Rights is in everyone's interest. At the same time, I want to emphasize: there is a valid election law that precisely regulates elections. In the event that there are no amendments to the Election Law, the elections will be held in the autumn of 2022 in accordance with the provisions of the existing law. There is no negotiation on this. Democracy functions according to predetermined rules, and elections in particular must not become a subject of political maneuvering. Free, equal, and fair elections are the core of democracy.

On the same day, and following Čović's claim that there are no formal legal conditions for organizing elections, the president of the CEC BiH, Željko Bakalar, reacted via his Twitter profile, confirming that "there are no constitutional and legal obstacles to the organization of general elections and the implementation of election results after the 2022 elections":

There are no constitutional and legal obstacles to the organization of general elections and the implementation of election results after the 2022 elections. The current legal situation cannot be compared to the impossibility of holding elections in Mostar. Constitutional and legal discrimination remains, and this is an obstacle to BiH's European path!

Finally, in the context of Čović's claim, it should also be recalled Article 1.14 of the Election Law of BiH, in accordance with which the CEC BiH announces elections at all levels of government in Bosnia and Herzegovina, and which are held on the first Sunday in October:

(1) Elections at all levels of government in Bosnia and Herzegovina are held on the first Sunday in October, unless this date coincides with the observance of a religious holiday of one of the constituent peoples of Bosnia and Herzegovina. Elections that cannot be held on the first Sunday in October, due to coinciding with a religious holiday, are scheduled by the Central Election Commission of BiH for the Sunday after the first Sunday in October that does not coincide with a religious holiday.

(2) The Central Election Commission of BiH announces elections in accordance with this Law, informs all competent authorities at all levels of government and the public about the date of the elections at least 150 days before the elections, unless otherwise specified by the provisions of Chapter 14 of this Law.

(3) The Central Election Commission of BiH publishes the election dates for all levels of government in the "Official Gazette of BiH", in the official gazettes of the entities and the "Official Gazette of Brčko District of BiH" and the media.

Given the factual situation regarding valid legal solutions, as well as the stance of the OHR as the international institution responsible for monitoring the implementation of the civilian aspects of the Dayton Peace Agreement, Istinomjer assesses Dragan Čović's claim that there are no formal legal conditions for organizing the General Elections in 2022 as untrue.