(Non)admittance of B&H into the Council of Europe:

How Accusations Turned into Support

AIM Sarajevo, June 27, 2001

It seems like we are to harp on the election law forever. This, as of yet still not adopted document is the most proposed and just as frequently rejected bill in the six-year long history of the Dayton state of B&H. It has been molded and proposed by practically one and all

• from the would-be esteemed international experts and domestic jurists, to the opposition and ruling parties and individuals from within the Parliament and the government... Not one of these bills was ever adopted. In the meantime, the failure to pass the law has become one of the strongest arguments against the admittance of B&H into the Council of Europe and the cause of the ultimatum the OSCE and OHR presented both the previous and the present B&H authorities with.

The latest draft of the election law, drawn up by the B&H Council of Ministers (Alliance for Change), was rejected in the state parliament last week by its very creators, MPs from the Alliance?! The chairman of the Council of Ministers, Bozo Matic (SDP) immediately submitted his irrevocable resignation. The representatives of the international community shrieked that the present authorities are just as incapable of coping with their duties and irresponsible as the previous, having thus ruined the chances of B&H being admitted into European associations (the deadline for enacting the law was June 23), while the former nationalistic ruling set gloated over the fact: see, those in power today are even worse than we were! A downpour of accusations and counter-accusations followed. Then, last weekend, came Strasbourg ??and the parliamentary session of the Political Committee of the Council of Europe. Epilogue: the Alliance, i.e. the multiethnic forces in B&H , were commended for their bearing in regard to the proposed election law?!

So, the debate on the admittance of B&H into the Council of Europe was opened nevertheless and the B&H authorities granted time till September to finally pass the controversial law, the new time-limit for admittance being shifted to late autumn of this year. Matic's irrevocable resignation was accepted and interpreted as a "moral act". Yet, he continues to discharge his duties in the Council of Ministers as before, although his chairmanship in the Council has expired due to the still valid rule which prescribes an eight-month rotation at the post. If so, whatever was the problem to start with?

HOW IT ALL STARTED

There is nothing controversial about the necessity that B&H, like any other parliamentary democracy, is to posses an election law of its own. If nothing else, Annex 3 of the Dayton Peace Accord calls for such a law. In the interim five-year period, elections in B&H have been carried out in accordance with a set of provisional regulations and standards set by the (once again provisional) OSCE polling committee. The first serious attempt to draft a bill of the B&H election law was preceded by the1998. Madrid Declaration of the Peace Implementation Council (members of the former Contact Group) which, along with the recommendation that a constitutional election law be enacted, stressed the necessity that the said law upheld the idea of a multiethnic and truly democratic B&H. The Declaration also obliged the authorities to do their best to enact the law with the same measure of responsibility towards all B&H citizens, regardless of their ethnic or party affiliations.

Subsequently, the OHR, i.e. the then High Commissioner Carlos Westendorp, and OSCE presided by Robert L. Barry, formed the so called Task Group made up of seven local jurists and the French legal expert Francois Froment-Meurice who studied the Dayton Constitution of B&H and drew up a draft of a permanent election law in a year. But, the contradictory provisions of the constitution put the Task Group before a crucial dilemma: should it give preference to the part of the constitution which discriminates B&H citizens according to nation and territory (roughly speaking, a good Serb is only the one living in RS, while good Croats and Bosniacs exclusively reside in the B&H Federation) or to the part which, like Article 2 of the Constitution, prescribes the absolute protection of all human rights, forbidding any form of discrimination, particularly ethnic.

("No amendment to this Constitution can eliminate or restrict the rights and liberties quoted in Article 2 or alter this paragraph", item 4 of Article 2 of the B&H Constitution).

BOSNIANS AND HERZEGOVINIANS: PEOPLE WITH A " FLAW "

The Task Group led by Froment-Meurice gave preference to the constitutional provisions limiting human rights and drew up an election law bill which prevented almost a third of the B&H population from being appointed to the top posts in the government, simply because of their "inappropriate" ethnic origin. That was merely the beginning of troubles to come. Opposition parties and NGO groups engaged in a fierce campaign against the discriminatory bill. In the meantime, a statement of the mentioned French expert and creator of the proposed election law, leaked into the press. Froment-Meurice was of the opinion that the Federation was doomed to ruin since, in his view, the RS would eventually be united with Serbia anyhow; his explanation for disregarding the recommendations of the Madrid Declaration calling for the promotion of a multiethnic society and the protection of human rights: is he to be blamed that some in B&H "live in the wrong entity" ?! Speak of adding fuel to the fire. The campaign against the segregation election law reached its climax. At the beginning of last year, the Parliament adamantly rejected the bill and the said French gentleman departed from B&H. But, the controversial document, the stumbling block of all future debates remained, as did the self-seeking OSCE chief in B&H, the long-since retired American diplomat Robert Barry.

Interpreting the rejection of the proposed election law as a personal failure rather than an effort to democratize B&H, Barry, claim the well informed, vowed that he would embellish his diplomatic dossier in a jiffy, crowning the closure of his international career with yet another victory. The fact that the adoption of the election law is high on the list of the forty requirements the B&H has to meet before being admitted to the Council of Europe came handy to him. Under the slogan "you simply have to do this ", Barry first incorporated certain provisions of the rejected bill (like the fragmentation of the electoral constituencies) into last year's Interim Election Regulations (causing havoc at the past November elections) and subsequently pledging the present Council of Ministers to bring a somewhat modified draft of the law before the state Parliament. At the end of his term in OSCE a few months ago, prior to Barry's departure from B&H, the Constitutional Court ruled that all three nationalities enjoy the very same constitutional rights, regardless of the part of the Federation they come from, thus decreeing not only the coordination of respective entity constitutions, but the coordination of all other laws as well - including the election law, of course.

THE ROLE OF MIRKO BANJAC IN THE WHOLE AFFAIR

Since the principle of the constituency of all B&H nationalities was not incorporated into the latest bill of the permanent election law because the Council of Ministers (Bozo Matic) dispatched the OSCE version to the Parliament, the sole possible alternations of the draft bill came in the form of amendments to the most controversial articles of the law. This primarily applies to the way members of the B&H Presidency are elected, according to which a Serbian member of the Presidency is accountable for his actions solely to his, more often than not, nationally uniform voters and entity while, in their turn, Bosniacs and Croats are held responsible only to their respective national "camps" .In other words, two thirds of B&H citizens have no means of influencing two of the three men constituting the collective head of their state, nor are the said three in the least interested to preside over or answer to citizens belonging to an ethnic community other than their own. Since this contradicts the very idea of a collective, tripartite presidency, the Alliance for Change, i.e. SDP, came up with an amendment calling for two polling rounds within the election process; the first round meant to test the support candidates enjoy in entities other than their own, the second to decide the fate of the "finalists" of the first round according to the existing rules governing the race for the presidency.

But, prior to the plenary session of the top law-making body in the country, the usual parliamentary procedure calls for the convening of the Legislative Committee. The said parliamentary body then examines the proposed amendments and rules on whether they are to be accepted or not. Proposals sanctioned by the Committee are incorporated into the given bill and put to vote before the Parliament. In the case of the amendment forwarded by the Alliance for Change, the verdict went: no go! Allegedly, the latest draft of the election law discussed before the B&H Parliament underwent sixteen changes in the form of amendments mainly presented by the former ruling parties such as the SDS and HDZ. Any wonder then that these two parties were among the first to voice their satisfaction with the proposed election law? Not to mention the fact that the Nine-Man Committee presided by Mirko Banjac (an ardent Croat Democrat himself) is made up of prominent nationalistic figures of the B&H scene.

The Alliance refused to cast a vote of confidence to such a bill. SDP decided it was worth while risking amiable relations with the international community for the sake of a desired election law. Bozo Matic resigned, enticed by the unwillingness of his party comrades to support him and misled by the vows of the OHR that, this time, the disputed election law would be enacted. Mirko Banjac feigned astonishment in front of TV cameras: how come the very people proposing the bill, failed to vote in favor of it later on ?! For, as is well known, the only true advocates of a democratic, intact and in all other respects European Bosnia and Herzegovina are the members of the SDS and HDZ parties, while all others are known to be opposed to the idea (?! ).

A single day before the set time-limit expired, a final attempt of adopting the election law was made by the B&H Presidency in the form of a bill presented to the Parliament (Berry's law plus the Alliance's amendments) which was voted on according to the system "take it or leave it". The attempt failed. The proposed document did not suit Zivko Radisic, the Serbian member of the Presidency, in the least.

SO, WHAT IS TO BE DONE NOW?

However strange and obscure the whole tangle might seem to the common crowd, some among those deciding on the admittance of B&H into European associations obviously know more than the local ordinary man. For, how else could the satisfaction of the Political Committee of the Parliamentary Assembly of the Council of Europe regarding the identical stance of B&H multiethnic parties on the rejected bill and the decision to prolong the time-limit for the adoption of the law be interpreted? Whatever the case, the implementation of the constituency of all nations in B&H and the recommendations of the Madrid Declaration will have to be incorporated into the new election law bill. If not, the whole story will repeat itself.

The future of the chairman of the Council of Ministers in resignation depends on the outcome of the recently launched campaign for the abolition of the eight-month rotation at the top post of this governmental body. Some believe the Alliance may actually profit from the entire happening if it results in a decree calling for a permanent chairman of the Council of Ministers - a station which, according to analysts, Matic is likely to be offered anew. Since this novel, differently conceived post would in fact correspond to the duties Matic previously performed, this might be the easiest way to resolve the dilemma: was the irrevocable resignation of the chairman a moral or a formal act?

IVANA DRAZIC

(AIM Sarajevo)