Democracy

Bosnia and Herzegovina is a democracy which should be ensured through free democratic elections.²⁶⁸ However, the term “democracy”, which is referred to in the BiH Constitution, has specific characteristics due to the fact that it contains the elements of consensual democracy, i.e., the collective rights. Thus, the closing line of the Preamble underlines the special status of Bosniaks, Croats and Serbs as “constituent peoples (along with Others)”.²⁶⁹ The elements of proportional representation of peoples are contained in the procedure of the appointment of delegates in the House of Peoples (Article IV.1), elections for the House of Representatives (Article IV.2), elections for the three members in the Presidency (Article V.1), composition of the Council of Ministers (Article V.4(b)), appointment of members of the first Management Board of the Central Bank (Article VII.2), and even in the procedure of appointment of Judges to the Constitutional Court (Article VI.1).

Indeed, in some cases (for instance, in the case of the Constitutional Court), from a formal point of view, it is about a required federal representation. However, in reality, due to the demographic structure caused by the war, the postulates of federal representation result in the fact that the power of three state pillars is proportionally distributed among three constituent peoples. As far as the Constitutional Court is concerned, this observation is also confirmed, although in a questionable manner when it comes to constitutional-legal terms, by the applicable Rules of the Constitutional Court which constitute a positive- legal regulation of lower normative-hierarchical significance²⁷⁰ (despite its standardisation as a “constitutional category”).²⁷¹ In the course of legislative procedure, the Delegates of the House of Peoples from amongst one people may block the passing of laws by the Parliamentary Assembly with the argument that the said laws constitute a threat to the vital interest of their people (Article VI.3(e)). Finally, Article IX.3 of the BiH Constitution requires that the structure of employed civil servants in the institutions of Bosnia and Herzegovina should generally reflect the ethnic structure of Bosnia and Herzegovina.

If we try to assess such constitutional regulations by comparing them with standards of international law, then they become questionable. As to passing the BiH Election Law, the Venice Commission pointed to neuralgic points in the said law, which concern the election of the Presidency members and delegates of the House of Peoples. However, the applicable regulations of the BiH Election Law are just the repeated provisions of Articles IV and V of the Constitution of BiH. Therefore, as claimed, the mentioned provisions of the Constitution are in violation of international law, or, more precisely, in violation of Article 25 of the International Covenant on Civil and Political Rights²⁷² and Article 4 of the Framework Convention for the Protection of National Minorities.²⁷³

“1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited.

2. The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities.

3. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination.”

The above text is taken from: The Office of the High Commissioner of the United Nations for Refugees, Independent Bureau for Humanitarian Issues, Official texts, Sarajevo, 1998, pp. 169, 171.

The Venice Commission gives arguments that combining territorial with ethnical representation, as to persons whose ethnic affiliation does not match (factually) the ethnicity of the Entity they reside in, prevents them from standing as candidates in elections for the BiH Presidency. Therefore, a (declared) Croat or Bosniak, who has his/her residence in the Republika Srpska, cannot stand as a candidate for the position of a Member in the BiH Presidency on behalf of the Republika Srpska, and the same principle applies to a Serb who resides in the Federation. Moreover, as to the so- called Others, i.e., persons who did not identify themselves as members of any of the three majority ethnicities, they are completely deprived of the right to run for elections.²⁷⁴ The same applies to the appointment of the Delegates in the House of Peoples. Moreover, it should be mentioned that delegates in the House of Peoples of the Federation, who are not Bosniak or Croat, are deprived (indirectly) of their active electoral right to be appointed as Croat or Bosniak delegates in the House of Peoples of BiH, unlike the situation in Republika Srpska where the entire National Assembly appoints the delegates in the House of BiH Peoples (admittedly, Serbs only). The Venice Commission claims that this lack of congruence is hardly understandable. Further, only the Croat, Serb and Bosniak delegates in the House of Peoples of BiH have the right to veto; however, the national minorities have no such a right although, due to their position, they are in need of that right more than others. Such a situation comes under question in light of Article 5 of the Convention for the Elimination of All Forms of Racial Discrimination²⁷⁵ (which is a part of Annex 1 to the BiH Constitution).²⁷⁶ This violation of international provisions might have been necessary in 1995 for the purpose of reaching peace in BiH. However, taking into account the generally positive democratic development and stabilisation of the country, those violations, in the context of the present exhaustive jurisprudence of the ECHR²⁷⁷ and special relations in BiH, can no longer be justified, particularly because of the fact that clear participation interests have been guaranteed in a manner consistent with international law. Therefore, apart from making relevant amendments to the Law, it is necessary to amend the Constitution as well. This long- lasting and difficult process of reform of the Constitution, in the opinion of the Venice Commission, should not be in collision with the timetable of the 2002 general elections.²⁷⁸

The procedure of normative control of constitutionality in case U 5/04 had the same goal. This procedure was initiated by Mr. Sulejman Tihić, who was the Chairman of the BiH Presidency at that time. That case required an assessment of the procedure related to the appointment of delegates in the House of Peoples (Article IV.1), then, to the procedure of election of the Chairmen and his deputies in the chambers of the Parliamentary Assembly (IV.3(b)), and to the procedure of election of the Presidency members (Article V.1). The applicant claimed that there was a violation of the individual electoral rights referred to in Article 3 of Protocol No. 3 to the ECHR relating to the prohibition of discrimination because Serbs, Croats and Bosniaks were not treated equally in the mentioned regulations. Special treatment for the members of constituent peoples amounts to discrimination against “Others” when it comes to the enjoyment of their right to participate in political processes according to Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination, which is an integral part of Annex 1 to the BiH Constitution.²⁷⁹

The BiH Constitutional Court dismissed that request for mainly two reasons:²⁸⁰ on the one hand, the Court reasoned that the ECHR is a part of the Constitution and not above it, so the control of constitutional regulations according to the criteria of ECHR, which is incorporated in the BiH Constitution, was not to be considered. On the other hand, the Constitutional Court, pursuant to Article VI.3, is obliged to “uphold the Constitution”. Accordingly, the Constitutional Court cannot declare some provisions void. The Court further argues that in formal terms the point at issue is not related to a dispute within the meaning of Article VI.3(a) of the BiH Constitution. Actually, the list of competencies under Article VI.3 does not stipulate that the Constitutional Court should examine the compatibility of the provisions of the Constitution with, for instance, the ECHR or international law. Such authorisation would be identical to the right of the Constitutional Court to interpret its own competence (“Kompetenz-Kompetenz”), which would be hard to harmonise with the principle of power division. Only the constitution maker can revise or amend the Constitution. In the best case scenario, the Constitutional Court could identify the inherent contradictions which seem to be impossible to resolve, e.g., in the interpretation procedure which is consistent with international law, and leave it to the discretion of the constitution maker to eliminate those contradictions by amending the text of the constitution – under the prescribed procedure and by the required majority.