ANALYSIS OF THE PEACE DOCUMENT ON ELECTIONS

AIM SARAJEVO, January 28, 1996

The provisions of the Peace Agreement on Elections are clear and consistent in their demand that free, fair and democratic elections be organized in Bosnia and Herzegovina. Actually, they represent electoral principles of international level and verification, and considering the actual situation and relations in B&H, the positive side of that Agreement on the realization of the overall electoral project in the first place lies in the fact that all its aspects fall within the competence of the Organization for Security and Cooperation in Europe (OSCE).

Namely, precisely this institution will verify whether conditions are ripe in both entities to call the elections. It shall establish the election programme, supervise the overall process of preparing and carrying out the elections; it will also establish a Provisional Electoral Commission which will have all-embracing authority during the entire elections and in which the decision of its Chairman (the Head of the OSCE) will be decisive. The Provisional Electoral Commission shall adopt election rules and procedures, and all sides in B&H shall be obliged to fully abide by these provisions irrespective of their internal laws and regulations. In short this means that OSCE has great and decisive influence on the overall course of the election process.

However, as the Dayton Agreement in its part on elections restricted itself only to the establishment of principles, the OSCE shall have a free hand in bringing specific solutions regarding those rules and regulations which this institution considers most suited to the present Bosnian-Herzegovinian relations. Naturally, always within the limits of the principles established in Dayton. Actually, without insight into the OSCE election rules and regulations it is hard to make a more precise judgement on the future elections in B&H.

Still, it can be reasonably claimed that the implementation of the election principles from the Agreement requires more stable social relations than those which will prevail during their holding in B&H. Undoubtedly, numerous difficulties will arise, starting from attempts to obstruct them, through manipulations, up to gross violations of the election rules and regulations. On the other hand, a special problem will be to ensure the reliable registration of voters (according to the 1991 census), especially respect for the voting rights of refugees, and also of the right to a secret vote, without fear or intimidation.

Along with all the other questionable elements of the election process (freedom of movement, freedom of association and action of political parties, the right to be nominated, to organize a political campaign under free and fair competition, access to the international media on a non-discriminatory basis, etc.) it is disputable whether a voter for whom it is determined to have voted, will do it personally. In other words - whether the established and published election results will reflect the actual state in B&H?

It goes without saying that the main condition for solving these problems successfully is that the Provisional Electoral Commission prescribe in as great detail as possible the rules of conduct of the local media in relation to the elections. Bosnia and Herzegovina practically has no independent media. Most of them, even if one does not reproach them for having incited inter-ethnic tensions, sided with the unprincipled national political parties, and only strict rules for their behaviour and permanent efforts of the Commission to ensure that they are consistently abided by, would ensure the equitable treatment of parties and invididuals in the election campaign.

The Constitution of Bosnia and Herzegovina, however, contains only provisions pertaining to elections to the bodies of state power of B&H, and says nothing about elections in entities, cantons and communes, except that their election rules and regulations may not impair the constitutional principles and fundamental freedoms of citizens stipulated by that Constitution. Nevertheless, it stems from the Constitution that the composition of the bodies of the state administration of B&H is based, primarily, on the participation of an equal number of Bosniacs, Serbs and Croats and that (irrespective of whether they are elected directly by the citizens or delegated by the assembly) everything ends in the entitites. Although the latter principle is explained by the fact that B&H is a complex state of two entities, it is nevertheless a consequence of the previously (according to the Washington agreement) fragmented constituency of its three peoples, according to which the Bosniacs and Croats are constituents of the Federation, and the Serbs constituents of the Republic of Srpska.

With the remark that nothing else is pushing B&H so strongly towards a "union of states" and its citizens towards the restriction of their constitutional rights and inequality as does this this solution, it remains to be seen to which extent it enables the realization of two basic principles of the "Copenhagen document": guarantees of universal and equal civil rights for all citizens of age and respect of the right of the citizen to run (individually or as a representative of a party) for a political or public function without discrimination.

Since the House of Nations represents the peoples of Bosnia and Herzegovina, the Constitution follows such an option in the election of its members to the assemblies of the entities. But, where the election of members of the House of Representatives of the Parliamentary Assembly is concerned, the question arises of how to interpret the constitutional provisions regulating this matter, so as to fulfil the requirement of the "Copenhagen document" according to which "all seats in at least one house of the national legislation shall be free competition in direct voting". For, Article IV of the Constitution of B&H stipulates that two thirds of the members of the House of Representatives "shall be elected from the territory of the Federation and one third from the territory of the Republic of Srpska", which means that the members of this House will be directly elected, but "from their entity".

Therefore, can a candidate who is not (nationally) "from his entity", irrespective of whether the Federation or the Republic of Srpska is in question, be elected to the House of Representatives? In case of a negative answer, this means that the right of a citizens to be elected has effect and meaning only if he is a citizen from the territory of the appropriate entity, which is contrary to the right of being elected without discrimination . On the other hand, in case that a political party or organization active on the entire territory of B&H nominate its candidates to this House irrespective of which entity they come from ( which they are entitled to) that means (not only factually but also legally) that only those who are "from their entity" can be elected". The consequence is, naturally, division into two categories of citizens - those who can and those who cannot be elected, despite being nominated - which is undoubtedly a gross form of discrimination.

Actually, although the constitutional provisions on the composition of the House of Representatives makes no explicit mention of Bosniacs, Serbs and Croats, the very statement that of the 42 members of this House, two thirds are elected on the territory of the Federation and one in the Republic of Srpska, clearly shows the preference, i.e. suggestion that a third of each of those peoples make up the House. Since election is done "in their entities" this practically means that citizens who do not nationally belong to the entity in question cannot be elected to this House. Or, those citizens who have the national belonging but do not come from the territory of "their entity" cannot be elected. In this way, the electoral basis, besides being reduced to national affiliation is also restricted by the respective entity, and members eliminated of all other nations as well as of one's "own" who are not from "their territory".

The Constitutional provisions on the election of members of the B&H Presidency prescribe that one Bosniac and one Croat are elected directly from the territory of the Federation and one Serb from the territory of the Republic of Srpska. This points to the conclusion that the elected member of the Presidency should have to be from the territory of the appropriate entity. But, already the next paragraf of the same article states that "members of the Presidency will be elected in each entity" with no explanation of what the word "each" specifically means.

Namely, if it means - two in one, and one in the other entity, with the additional explanation that each voter can vote for one candidate only, then practically only members of the people to which he himself belongs would vote for an individual member of the Presidency. If it means that all voters in both entities vote for members of the Presidency, then we have to ask how this fits in with the constitutional provision that a Bosniac and Croat are elected from the territory of the FEderation, and the Serb from the territory of the Republic of Srpska. These provisions again, give a compromise interpretation - that all voters from both entities vote for Presidency members, but the member must be from a specific one. But, this compromise can hardly be called a better solution, because it too deprives a large number of citizens of B&H of their right to be elected without discrimination.

The documents of the General Framework Agreement for Peace in Bosnia and Herzegovina therefore, contain ambiguities, poor solutions and controversies. Realistically speaking, they could not have been much different because they concern a drastically weak social ambience controversial in itself. In addition, their serious intentions merit full support, not only in respect of stopping the war, but also in respect of the aspirations for Bosnia and Herzegovina to become a state of equal citizens and nations, in which human rights and fundamental freedoms are exercised in keeping with international standards. That is why these documents and solutions should be treated with a lot of good will and readiness to accept them in an optimally efficient and useful way.

The Provisional Electoral Commission will undoubtedly be faced with the serious and responsible task of adopting rules and regulations for elections in the complex circumstances prevailing in Bosnia and Herzegovina. But, on the other hand, the Commission has the possibility to rid the proposed solutions of any narrow-mindedness and exclusiveness, ie. to base them on the basic aims of the Peace Agreement. For, the importance of the pending elections is not limited only to the tenures of those elected, but is of decisive impact on the future of the state of Bosnia and Herzegovina.

Prof. Dr. NEDJO MILICEVIC (judge of the Constitutional Court of B&H)