• No review of election rules referred to in Annex

The Provisional Election Commission amended the Election Rules, thereby taking a step which some parts of the international community marked as premature,³⁴⁵⁹ wanting to weaken the ethnically-conditioned divisiveness in the government. The disputed amendment had the following effect: all delegates in the cantonal assemblies could now elect delegates of their canton into the House of Peoples of the Federation of BiH irrespective of their own ethnic affiliation, so that, eventually, the delegates belonging to one people came to decide on the delegates of other people in the House of Peoples. While it appeared on paper as if all peoples had been equally damaged by this regulation, in practice it damaged primarily the Croats as the least numerous group. Since the cantonal delegates in the House of Peoples of the Federation of BiH vote on the delegates to be elected into the House of Peoples of BiH, this amendment indirectly affected the make-up of the House of Peoples at the State level, so that in this case there was an indirect link with the Constitution of BiH. Ante Jelavić, a Croat member of the Presidency at the time, considered that this amendment to the election rules threatened the interests of the Croats in BiH. The claim that the principle of ethnic representation, set forth in the Constitution of FBiH and the Constitution of BiH, is violated if representatives of one people are not elected solely by members of the respective people, but also by members of other peoples, is not to be fully disregarded.³⁴⁶⁰

The HDZ was so embittered that this party called on the Croat population to vote on election day on the referendum on the declaration about the rights and status of the Croats in Bosnia and Herzegovina. This declaration was issued by the Croat People’s Parliament at the end of October 2000, and the Parliament was established by the HDZ and several minor Croatian parties.³⁴⁶¹ The International Community considered this act as the establishment of “parallel institutions” in the Federation of BiH, which altogether brought about the most critical security situation in BiH since the end of the war. Out of protest, Croatian soldiers moved out of joint military barracks in the FBiH. When the OHR and the SFOR, in a joint action, took control of 10 branch offices of the Herzegovina Bank, as it was suspected that the Croatian Defence Council – HVO was illegally funded through an account in that bank, unrest set in, culminating in violence, which, apparently, was managed by the Croatian senior officers in the Federation intelligence agencies.³⁴⁶² And, finally, Ante Jelavić was removed from the office of the member of the Presidency of BiH, on the grounds of his, alleged, participation in the setting up of the Croatian People’s Council, as a legislative body of the Croatian Self-Administration (so to say “the third entity”).³⁴⁶³

In the request for the review of constitutionality of 6 December 2000, Jelavić, firstly, complained about the amendments to the Election Rules (Article 12.12 of the Election Rules), and, secondly, about the procedural regulation according to which the decisions of the Sub-Commission are final (and accordingly no appeal whatsoever may be lodged before the court against the respective decision). He asserted that these regulations violated Article IV.1(a) of the Constitution of BiH,³⁴⁶⁴ as a principle of ethnic representation in the houses of peoples, which was set forth in section IV.A of Articles 6 through 10 of the Constitution of FBiH; besides, these regulations also violated the right to legal protection referred to in Articles 13 and 6, paragraph 1 of the ECHR in conjunction with Article II.2 of the Constitution of BiH.

In the Decision No. U 40/00 – which was, for the aforementioned reasons, adopted in a situation marked by high tensions – the BiH Constitutional Court declared itself incompetent to review the Election Rules. Basically this standpoint was reasoned in the following manner:³⁴⁶⁵ the Provisional Election Commission, which was established under Annex 3, according to the goal and systematics of the peace agreement, is not an institution of Bosnia and Herzegovina. For the purpose of building and maintaining peace, in addition to the Constitution, also established were special international or partially international institutions which have an interim or long-term mandate. They should not be integrated into the normal domestic institutional framework of Bosnia and Herzegovina; instead, they should act together, i.e., in parallel with them. The composition, as well as the manner of appointment of members of these international institutions, demonstrates the basic idea that the mentioned institutions should be separated from the normal institutional framework of Bosnia and Herzegovina. This differentiation, the goal of which is the preservation of peace, is also reflected in the fact that the Constitution, laid down in Annex 4, is in parallel demarcated from other foreign (quasi) international institutions, set up by other Annexes. That constitutes an indication that there is no hierarchy of international and domestic institutions, but that it concerns a relationship in which these institutions complement one another, and that was the original intention. The court refers to its earlier jurisprudence in relation to the systematics of the GFAP in cases Nos. U 7/97 (GFAP), U 7/98, U 8/98 and U 9/98 (Human Rights Chamber), U 9/00 (OHR as a legislator), which it considers as the basis for this systemic-teleological interpretation. Taking into account the last judgment, apparently it is necessary to establish some sort of differentiation, given that the BiH Constitutional Court declared itself competent, precisely in that case, to review the constitutionality of laws that the High Representative enacted in the stead of the Parliament of Bosnia and Herzegovina. The BiH Constitutional Court sees the decisive difference between the High Representative and the Provisional Election Commission in the type of legal basis in the corresponding Annexes: unlike the High Representative, the Provisional Election Commission, as the Court asserted, did not allow itself to intervene on behalf of the domestic legislator, instead, based on the specific and authentic authorisation referred to in Annex 3, it enacted the Election Rules. Paragraph 16 of Decision No. U 40/00 carries the following reasoning:

“Unlike this last case mentioned above, the present case did not concern interference with legislative prerogatives assigned by the Constitution to the domestic legislation of Bosnia and Herzegovina, but the Rules and regulations of the PIC had been enacted under the specific authorisation granted to the PIC in Annex 3 of the General Framework Agreement. Furthermore, Article III of this annex explicitly states that the Election Rules and regulations enacted by the PIC shall be observed ‘irrespective of any internal laws and regulations’ […]”.

In obiter dictum the BiH Constitutional Court appeals to the legislature, given that it is especially important to secure constitutional and legal protection for democratic elections, to enact without hesitation the election law, the review of which would then fall within the jurisdiction of the BiH Constitutional Court.

The decision was made despite fierce opposition of two “Croatian” and two “Serbian” judges, who had provided reasons for their opposition in thorough separate opinions, convincing in their own way.

Thus Judge Popović considered that the decision “in formal and legal sense […] had deficiencies”. Departing from its competencies, the Court, as a matter of fact, engaged in politics when asserting that while drafting the agreement it was “desirable”, even necessary, in addition to the Constitution, to establish special international or partly international institutions for the restoration of peace. Judge Popović in his legalist critique also overlooked that the goals and intentions of the authors of the peace agreement were relevant for the interpretation of the Constitution. Similarly, Popović also sounded formal when criticising the appeal of the BiH Constitutional Court on the legislature to expand the constitutional protection to the area of elections by enacting the domestic election law. Admittedly the caution by the Court was unusual, yet it was appropriate, considering the constant procrastination and delays.

What could indeed be discussed at length is the critique articulated not only by judge Popović but also by Judges Zovko and Miljko, as well as Judge Savić, who held that this decision of the Court was contrary to the case U 9/00, which is regarded as a precedent. And, indeed, it is possible to find several parallels, that is, similarities, with the case U 9/00, which were accurately outlined in the separate opinions. The three arguments certainly carry the most weight. Firstly, judge Savić points out that, under Article 3 of Annex 3, it is necessary to fully observe the Election Rules, and this should not be jeopardised either by the domestic laws or by-laws. However, this does not apply to the Constitution, the Judge claimed. Also, Miljko and Zovko make us think when they say that the decision brings about the situation in which the Constitution would be subject to violation in such a significant and vital area touching upon the individual and group rights, such as democratic elections, until a domestic law has been enacted. And, finally, an objection that only the first elections after the conclusion of the peace agreement should be conducted in accordance with the election rules of the OSCE, also makes certain sense. However, since the domestic legislator had failed in enacting its own election law, that does not have to mean right away that the election rules, regarding all the elections to follow, should automatically, or under the theory of the substituting State body referred to in Case No. U 9/00, be subject to the control (review) of the BiH Constitutional Court.