Traditional theory of pluralism

Traditional shaping of social pluralism affects, primarily, institutions which are relevant for the enforcement of the state will, that is to say, political parties and other public and legal bodies such as associations, the press and electronic media, etc. The basis for this is the right to freedom of thought and expression, which must be independent from the state and which must be in the free market of opinion, for, in such a manner, it builds the democratic opinion of a society. An example of this is the case law of the constitutional courts of the Federal Republic of Germany,¹⁴⁵ Spain¹⁴⁶ and France,¹⁴⁷ and particularly issues related to the public funding of political parties and their obligations to the intra-party democracy.

In the case law of the European Court, also emphasised is the narrow link between freedom of expression and democracy. The link between these two categories particularly comes to the fore in a public debate, which has a special general interest and which, at the same time, determines the very core of this freedom.¹⁴⁸ This primarily relates to Articles 10 and 11 of the ECHR, as well as to Article 3 of Additional Protocol No. 1 to the ECHR, which guarantees the right to regular free elections, which, then again, should make it possible for the will of the people to be manifested. Thereby, it is important that the right to elections be viewed not only as objective obligations of the member states of the Council of Europe, but also as – under certain conditions – the rights to authentic parliamentary representation pursuable through subjective action.

A question arises as to how much does the construction of the multiethnic State of Bosnia and Herzegovina correspond to that concept? A possible contradiction between ethnic quotas and the right to individual political expression of opinion during the elections the Constitutional Court of BiH has already recognised in its Decision No. U 5/98, whereby it asked itself a question in such a context:

“However, to what extent may institutional devices for the representation and participation of groups with the aim of power sharing infringe upon individual rights and in particular, voting rights?”¹⁴⁹

First and foremost, the resolution lies in differentiating between the areas where quotas are needed and the areas where they are not needed. Otherwise, quotas might be viewed as discrimination.

Nevertheless, one could object that differentiation between these two categories has not always been clearly made,¹⁵⁰ it has not always been clearly reasoned,¹⁵¹ that the quotas have so far suppressed the building of political opinions of political parties, or that Bosnia and Herzegovina’s combination of ethnic quotas and territorial division does not represent an ideal solution, as it, undoubtedly, results in discrimination against members of the constituent peoples as per their respective place of residence and representatives of “others”, that is to say “genuine” minorities.¹⁵² In a number of its reports, the Venice Commission pointed out this problem and emphasised that it was necessary to think about the electoral system of Bosnia and Herzegovina, and to this end made special emphasis on the following:¹⁵³

“The ethnic representation and privilege of constituent peoples, i.e., Bosniacs, Croats and Serbs, in the composition of the parliamentary and executive institutions and decision-making processes leads to a double exclusion: first, all Serbs who reside on the territory of FBiH as well as all Croats and Bosniacs who reside on the territory of RS are excluded from the right to stand as candidates for the Presidency elections. Second, all “Others” who do not identify themselves as members of these constituent peoples are also excluded from the right to stand as candidates in the elections for both bodies referred to. Thus, a member of one of the 23 legally recognized national minorities or a person with the background of a “mixed marriage” who does not want to identify himself as exclusively Bosniac, Croat or Serb or a person who refuses to identify himself for whatever reason is prohibited by the Constitution and the Election Law to run in the elections for these bodies.”

Indeed it would be possible for the constitutional and legal right to be shaped so as to retain provisions on quotas of constituent peoples in order to preserve their equality, and yet to take into account the “others” and to forego association of candidates with polling precincts on territorial grounds.