The constituent status imposes intraparty pluralism

According to the jurisprudence of the BiH Constitutional Court, the principle of constituent peoples, in the end, imposes intraparty pluralism. Namely, the political parties at all levels of authority are obliged to observe a multiethnic structure on their lists in order to ensure ethnic parity in elected bodies. Otherwise, they might be in a position where election results would not correspond to the number of mandates to which a certain political party is entitled to in a legislative body.²²⁷

In this way, the Constitutional Court attempts to achieve a balance between the reciprocal voting right and ethnic parity, which, in the Constitutional Court’s opinion, stated in its Decision No. U 4/05, arises from the principle of constituent peoples, as read in Decision No. U 5/98-III. The reciprocal voting right is thus conditioned through the constitutional obligation stipulating a minimum representation of all constituent people in elected bodies: the minimum representation is mandatory also where the election results do not correspond to the number of mandates to which a certain political party is entitled to in elected bodies, i.e., the number of mandates which should be granted to a certain political party, because its list of candidates does not include candidates from other ethnic groups. In this way, the Constitutional Court sets up a constitutionally-legally established mechanism of consensus democracy in the pluralistic state.

The proceedings in Case No. U 4/05 were the reason for the practical application of the principle of constituent people. In this case, the Constitutional Court had to decide whether Article 21(3) of the Statute of the City of Sarajevo was consistent with the BiH Constitution. The challenged provision stipulated, inter alia, that Bosniaks, Croats and Others should individually have a minimum of 20% of places guaranteed in the City Council regardless of the election results. Pursuant to paragraph 4 of this Article, it was stipulated that if the minimum of the guaranteed places referred to in paragraph 3 of this Article had not been reached upon the selection of City Councillors, the City Councillors should be selected from among candidates enumerated on the lists of the political parties represented in municipal councils according to the election results. The applicant maintained that representatives of the Serb people were not selected at all to the City Council of the City of Sarajevo, whereby the principle of constituent peoples and the prohibition of discrimination were violated. The BiH Constitutional Court upheld the applicant’s position and found a violation of the principle of constituent peoples and of the prohibition of discrimination (Article II.4 of the BiH Constitution) in conjunction with Article 5.1(c) of the Convention on the Elimination of All Forms of Racial Discrimination.²²⁸ Serbs also should be guaranteed a minimum of 20% of seats in the City Council of the City of Sarajevo irrespective of the election results.²²⁹ To treat the group of Serbs as a part of the “Others” does not satisfy to a sufficient extent the principle of constituent peoples.²³⁰

The jurisprudence explicitly referred to ethnic parity, the subject matter of the Decision No. U 5/98-III, which departs from the assertions of the said Decision as it wants to see the application of participation rights in general, at all levels. Whereas the Constitutional Court in its Decision No. U 5/98-III recognised collective rights as represented in governmental structures only for the cases particularly regulated by the Constitution, which implies that the Constitutional Court did not actually want to derive the general rule of ethnic parity for all public bodies, including Entity, Cantonal and municipal levels, i.e., communal levels, the Constitutional Court, sitting in its new composition, refers now to such a general rule.

Nevertheless, the arguments offered in Decision No. U 4/05 cannot be entirely denied. The very reference to Decision U 5/98-III, asserting that the Court derived the general rule of ethnic parity from the principle of constituent peoples in that decision, is contradictory. In its Decision on constituent peoples, in fact, the Constitutional Court recognised ethnic parity in the joint authorities only as a special form of the constituent status, which should not be generalised.²³¹ It is another issue whether the Entities, cantons and municipalities, individually, aspire to introduce ethnic parity especially for certain institutions and bodies and, if they do so, to what extent one should be consistent in applying this principle. Setting the quota for the City Council may be justified also by the principle of constituent peoples as well as by the principle prohibiting discrimination in terms of affirmative action. According to the interpretation of the principle of constituent peoples in the Decision U 5/98-III, however, this is not mandatory. In case an authority or body introduces a quota-based system, this quota must not be set in a discriminatory manner.

By applying its case law established in Decision U 5/98-III, the Constitutional Court, therefore, should have left room to manoeuvre in order for the authority, which enacts the statute to that effect, to decide by itself and there would have been no need to declare the challenged regulation unconstitutional. In order for the previous case law to be altered, it would be necessary to suggest it explicitly and that the Constitutional Court get to grips with the arguments given in its Decision No. U 5/98-III. In this case, therefore, the fact that the City of Sarajevo introduced a parity system should not have been criticized at all. However, the fact that the City of Sarajevo introduced a minimum of 20% of seats in its City Council for Bosniaks, Croats and Others but not for Serbs had to be disapproved. Although Serbs may be regarded as a part of “Others”, a failure to explicitly mention the said ethnic group and to justify the privileges granted to Bosniaks, Croats and (undesignated) “Others” amounts to prohibited discrimination against Serbs. However, the quota should be mandatory only in the case where there are sufficient Serb councillors to the city council. If it is not possible to give Serbs the mandates anticipated for them, due to a lack of Serb councillors to the city council, it should then be allowed that these seats be granted to members of other political parties even if this implies members of other peoples. Such a conclusion, however, would be contrary to the principle of intraparty pluralism, which is proclaimed in Decision No. U 4/05.