Dossier: Election Law in B&H, Part Two

WHAT IS CONTROVERSIAL IN THE PROPOSED DRAFT LAW?

The most powerful argument of the democratic alternative which is dissatisfied with the draft law is that the proposed solutions of the Working Group are not in harmony with the European Convention on Human Rights (ECHR), in other words that according to the proposed solutions more than one third of the citizens of B&H can practice neither the active nor the passive right to vote. In other words, through giving preference to voting on ethnic grounds, it is in fact suggested to the citizens of B&H that they will enjoy their rights fully only if they change their place of residence and agree to live on ethnically defined territories. According to the Dayton B&H Constitution currently in force, the three majority ethnic groups (the Serbs, the Croats and the Bosniacs) are constitutive only in parts and not on the whole territory of the state. The Serbs are constitutive nation only in the Republika Srpska while in the Federation they are treated as a minority, and the Bosniacs and the Croats are constitutive nations in the federal entity and minorities in RS.

Guided by this constitutional provision, the Working Group has solved the election for the supreme state agency - the three-member presidency of B&H - with the election of the Serb member of the Presidency solely from the territory of the entity of RS by exclusively the electorate in it, and the Bosniac and the Croat member who must be by origin from the Federation and elected in it: "The Bosniac and the Croat Members of Presidency of Bosnia and Herzegovina shall be elected by voters registered to vote in the Federation of Bosnia and Herzegovina. A voter registered to vote in the Federation can vote for either the Bosniac or Croat member of the Presidency, but not for both. The Serb Member of the Presidency of Bosnia and Herzegovina shall be elected by voters registered to vote in the Republika Srpska". (Draft Election Law, Article 8.1, Chapter 8).

This in fact means that at least one third of the citizens of B&H who live in the "wrong" entity where their ethnic group is not constitutive cannot practice their active but only their passive tight to vote, that is, that the Serbs in the Federation and the Croats and the Bosniacs in RS cannot run in the elections as candidates for members of B&H Presidency. On the other hand, multiethnic parties are also forced to think in ethnic categories and they must make up their minds who their candidates will be not according to their capabilities, but solely to their ethnic origin. For example, if a multiethnic party in the Federation wishes to run for the Presidency, it must first make up its mind whether it will run for the seat of the Croat or the Bosniac member which automatically introduces the ethnic determinant among its members and not the social democratic, liberal or any other on the basis of which their members in fact gathered and united to form the party. If on the other hand, they decide to nominate two candidates for the Presidency, both the Bosniac and the Croat member, this means that these two candidates will be direct rivals to each other in the election competition, because members and supporters of multiethnic parties will have to choose which one of them they will vote for since they can give their vote to only one candidate. Ethnic parties, however, have no such problems because their members and voters are determined solely by the single-ethnic determinant. Therefore, it is only logical that this part of the offered text of the law was criticised mostly by multiethnic civic parties of the opposition.

Similar is the problem with the election of delegates for the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina. Here, too, the right to run for a seat in this House is denied to more than one third of the citizens of B&H (according to the current estimates that is how many of them are "unqualified" because of their ethnic origin) if they do not fit in the ethnic picture created by the Draft Election Law: "Delegates from the Federation of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina shall be selected by members of the House of Peoples of the Parliament of the Federation of Bosnia and Herzegovina, from amongst Bosniacs and Croats from the Federation of Bosnia and Herzegovina. Delegates from the Republika Srpska to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina shall be selected by members of the National Assembly of the Republika Srpska, from amongst Serbs from the Republika Srpska" (Draft Election Law, Article 11.1, Chapter 11).

This part of the Law was criticised not only by multiethnic parties but even by single-ethnic ones which run in the elections of the whole territory of B&H, in both entities. The reason: the ruling Bosniac party SDA participates in the National Assembly of RS, but its delegates cannot be elected for the House of Peoples of the Parliamentary Assembly of B&H because they are not Serb.

The existence of such discriminatory provisions about which numerous associations of refugees said that they had "opened their eyes" about the true stand of the international community towards them and that it showed that their return to their prewar homes was an illusion because results of ethnic cleansing were actually accepted, was justified by members of the expert group with the current Constitution of B&H and its provision about constitutive three ethnic groups in their respective entities - the Serbs in RS and the Croats and Bosniacs in B&H Federation. The OHR and OSCE claim that nothing better could be done and that every other solution would require amendment of the Constitution. However, independent lawyers close to the non-governmental organisations and the alternative scene of B&H, as well as experts from the International Crisis Group (ICG), claimed that B&H Constitution also includes a provision which dictates a completely different conception of future laws but which is in contradiction with the part on constitutiveness preferred by the members of the Working Group. Indeed, in Article 7 of the General Framework Agreement For Peace in B&H, but especially in Annex 6, and Article 2 of B&H Constitution, it is stressed very clearly that human rights are inviolable. In Article 10 of B&H Constitution, in its Paragraph 2 on fundamental freedoms and rights of man it is underlined that "no amendment of this Constitution can either eliminate or diminish rights and freedoms stated in Article 2 of this Constitution or change this paragraph". Paragraph 4 of Article 2 of the Constitution of B&H prescribes that there shall be no discrimination of the citizens of B&H on any grounds. If to these explicit provisions one adds the fact that all international documents and charters on protection of human rights and freedoms, such as ECHR, are part of B&H Constitution and that they are listed as superior to this Constitution itself, it is clear why independent lawyers accused the Working Group that it followed the line of least resistance by choosing provisions which prefer the current ethnic segregation in B&H for the basis of their work.

Indeed, there was plenty of polemics about the conformist attitude of the OHR and OSCE concerning main postulates of the draft Election Law. Often they are accused that their ultimate goal is protection of political careers of their diplomats and wish for individual successfulness which conception of the election law would contribute to instead to create conditions for democratisation and make all the future documents of this country up to European standards.

Some of the local members of the Working Group who are otherwise engaged in NGOs and hold high posts in institutions for human rights publicly claimed that before this assignment they had quite different stands as independent individuals, but that in this group they worked according to directives and instructions of the OHR and OSCE. One of them who wished to remain anonymous, declared that former High Representative Carlos Westendorp openly told them that he wished to see the election law passed in B&H which would be the "crown on his political career" and that Ambassador Berry was still resolute that this should happen during his term in office in Bosnia.

The controversial provisions of the draft Election Law were taken from the Provisional Election Rules this country used immediately after the four-year war and ethnic cleansing of a large portion of the population of B&H. At the time these rules were made, OSCE which was the organiser of all postwar elections (in 1996, 1997, 1998) assured the public in B&H that they were just temporary solutions which would be eliminated by the permanent election law. Parties from the Federation, especially SDA, were especially sensitive to the unpopular P-2 form for registering voters. The provisional rule according to which the voters could vote in their new place of residence, that is, where they found themselves during the war either by banishment or by unlawful moving into somebody else's home (in the postwar year of 1996, the OHR and OSCE explained this as the initial phase in the process of return of refugees to their homes) was confirmed by the new draft Election Law as a permanent rule: "A citizen of Bosnia and Herzegovina who is a displaced person and has the right to vote, shall have the right to register and to vote in person or absentee for the municipality in which the person had his or her permanent place of residence according to the 1991 Census, except in the case where the person can provide proof of a change of his or her permanent residence in accordance with the law, in the period from the 1991 Census until that person acquired status as a displaced person, or in person for the municipality of his or her current residence, under the condition that he or she became a resident of that municipality at least six(6) months prior to the election day" (Draft Election Law, Article 1.6, Chapter 1).

Although the Working Group found pretext for this possibility of choice of the place where a voter wishes to vote in the "universal principle" - in the freedom of choice, federal political parties claim that this could be achieved only after completion of return of refugees to their pre-war homes, after conditions for their return were met and that at present it meant recognition of results of ethnic cleansing. To the statement that this enabled continuation of usurpation of other people's property, the Working Group answered that the right to vote had nothing to do with property rights: "A person shall not be denied the right to vote in a municipality due to a litigation concerning ownership or the right to use property. This shall not be a factor in determination of the right of a person to vote for a certain municipality... Such a person is entitled to vote in the municipality where he/she lives. A citizen of B&H has the right to vote in any municipality in B&H" (The answers of OSCE to the delegates' questions in B&H Assembly). Speaking from the aspect of jurisprudence, the OSCE is quite right concerning the impossibility to link the right to vote with ownership right as well as the choice of the citizens of the place where they will vote in B&H. However, in this country a large number of refugees still has no possibility to return to their homes, so all the other rights become liable to manipulation.

It is interesting that in yet another article of the draft Election Law the political reality in B&H is opposed to fair and free elections however paradoxical it may sound. In the part of the law which refers to the establishment of municipal electoral commissions (which are in charge of securing and supervision of the elections, registration of voters, nomination and training of members of polling station committees, counting of ballots and publishing of results) the OHR and OSCE prescribed that the members of these commissions be elected not from all political parties or the headquarters of independent candidates, but that they be representatives of the municipal authorities: "The Municipal Election Commission shall consist of the President of the Municipal Court, who shall be the President of the Commission and the Secretary of the Municipal Council/Municipal Assembly. The remaining members of the Municipal Election Commission shall be appointed by the Municipal Council/Municipal Assembly, subject to the approval of the Election Commission of Bosnia and Herzegovina. (Draft Election Law, Article 2.17, Chapter 2).

Since members for municipal councils and courts are nominated as direct representatives of the ruling parties this in fact means that they are given the opportunity not only to control but possibly even to manipulate the process of the election or ballots.

WHAT OTHER CHANGES WERE PREPARED BY DRAFT ELECTION LAW

One of the significant positive characteristics of the draft Election Law is the Open List Proportional Representation System, which differs from the former system according to which voters could choose amongst parties and coalitions and not amongst individual candidates. According to the system of open lists, voters would be enabled not only to choose amongst different parties but also express preference for certain candidates from the list of a single party.

The possibility was also introduced of complex constituencies, that is, of fragmentation of the territory of constituencies in order to increase responsibility of the elected officials to those who have elected them since according to the explanation given by the OHR and OSCE, it is possible to establish a more immediate contact between the voters and their representatives. However, such fragmentation of constituencies can be dangerous - it may result in the election of even more local politicians who would again be responsible only to a certain group of people which is in B&H usually determined by ethnic or narrow party interests.

In order to overcome the single-ethnic determinants of the members of B&H Presidency, experts of the Working Group insist on signatures of entity support. Candidates for the Presidency must provide three thousand signatures of support for their candidacy, at least one thousand of which must be signatures of the voters who have permanent places of residence in the other entity, or a declaration of support of at least four municipal councils or assemblies from the other entity. For the parties from the Federation, even the ruling SDA and HDZ, and even for the parties from RS which have their committees in the Federation this will not be a problem, so they did not react too strongly to this provision. But radical ethnic parties from RS, and also the multiethnic parties of B&H did react strongly against this provision. The former because they do not have their committees or support in the other entity, and the latter because they are dissatisfied with the small number of signatures that need to be provided. According to the opinion of the multiethnic opposition parties only support of some 20 thousand or more signatures might be able to eliminate parties and candidates who represent narrow ethnic interests.

There is another provision of the draft Election Law that caused disapproval, even ridicule, of the opposition parties. In the part which refers to election of a member of the three-member Presidency, voting for his/her deputy is also prescribed. However, the post of the deputy would be activated just in case of death or inability of a member of the Presidency to permanently carry out his or her functions, while in case of resignation or removal from the post, the term in office of the deputy member of the Presidency would also be terminated. Since a member of the Presidency was formerly replaced by the next candidate on the list who had won the second largest number of votes, this "original" provision in the draft Election Law was automatically linked by opposition politicians and independent lawyers to the elderly Alija Izetbegovic and his attempt to make sure that his deputy (if he wins) in case of death will be the person he himself selects to be his deputy in the elections. This can be almost anybody from amongst his escorts since the votes primarily go to his and not the deputy's name.

THE FUTURE OF THE ELECTION LAW

The recent rejection by the Assembly of the draft Election Law brings things back to the beginning. The OHR and OSCE announced amendments of their draft which primarily refer to deletion of the whole Chapter on the election of members of the three-member Presidency, which is possible because pursuant the Provisional Rules their four-year term in office expires in 2002. After modification of some of the chapters which limited human rights of all citizens of B&H, the most powerful opposition party, the Social Democratic Party of B&H, announced possible cooperativeness and acceptance of a debate on the draft Election Law. The ruling parties in the Federation, however, primarily SDA, reacted to the announced deletion of controversial parts of the Law by saying that such an option was even worse for them and that they were more contented with the original text of the draft Law.

It is a fact that the international institutions in B&H nowadays have a very unrewarding position: on the one hand they are pressured by constant threats of the alternative and multiethnic parties that they will boycott the elections, and on the other by the ruling ethnic oligarchies which are discontented with the drafted election provisions. In both cases of possible boycott, this can have negative reflections on political careers of international diplomats in B&H which, quite understandably, are very important for them. In some cases it seems this is even more important than the good causes they have undertaken to accomplish in B&H. This thesis (unfortunately) can be proved by the latest very controversial information about the status of the permanent election law in B&H.

Passing of the permanent election law was considered until recently as one of the primary conditions B&H was expected to meet in order to be received in the Council of Europe. Since in April this year a new debate on reception of B&H into this European organisation is expected to take place, 15 February was set as the deadline for passing the election law. In case the parliament fails to do this job, the High Representative of the international community is authorised to impose the law if it is of decisive interest for B&H, such as joining of the Council of Europe, for instance. However, not long ago information "leaked" in local press that the Council of Europe gave up on the permanent election law as the condition for receiving B&H in its ranks. This was commented on as opening of the possibility for the OHR to impose a law which could additionally strain the political situation in B&H, that is for withdrawing from the not very well done job of preparing the election law. Some of the delegates of the Parliamentary Assembly of B&H confirmed that such recommendations had in fact arrived to the addresses of their deputy clubs from the Council of Europe, but since they bore the mark "confidential" they refused to present them to the media.

On the other hand, the current High Representative Wolfgang Petritsch and chairman of OSCE Robert Barry still publicly claim that the permanent election law is an extremely important condition for reception of B&H in the Council of Europe (!?) leaving in this way the possibility for imposing it by 15 February. Since in this case it would be a considerably amended draft Law which might not have that many segregative and discriminatory provisions, its passing in the parliamentary procedure or its imposing by the High Representative could mean satisfying of the appetites of until recently cooperative and nowadays two opposed parties: the democratic alternative in B&H would be satisfied because it would consider key amendments in the draft Law and increased protection of human rights its victory and recognition that it is capable of deciding about the future of B&H, and international diplomacy would win the so badly desired point in this country because the law would, after all, be its accomplishment and it would be its formal author even if it is entered into parliamentary procedure by some Drago Ljubic.

AIM SARAJEVO