NEW ELECTION LAW FOR B&H

FURTHER DISCRIMINATION AND ETHNIC DIVISION OF THE COUNTRY

AIM SARAJEVO, September 29, 1999

Recently rumours swept Sarajevo that the Steering Board of the Council for the Implementation of Peace and the Council of Europe, who have been charged with the approval of the new (permanent) draft Electoral Law for B&H have raised so many objections that it can already now be considered rejected. Even if it turns out that these were only speculations or exaggeration, nevertheless this speaks best about the atmosphere surrounding the adoption of this Law.

The draft was prepared by a group of national and foreign experts in absolute secrecy since the full text has not reached the public to this very day. The OSCE Mission even conducted a two-month public debate among the citizens as if the Law was not already in preparation and as if the citizens were those who should have the first say when it came to the OSCE question "State clearly what do you expect from the new Electoral Law" which was a slogan under which this campaign was organised. This created an impression that citizens would give general direction to Working Group members how to legally formulate legislative solutions they had presented in the public debate. The fact remains that the citizens have shown great interest in the public debate and have submitted that a large number of truly good solutions.

But, after the publishing of a summary of the draft Law which the Working Group had submitted to the OHR and OSCE, it became clear that the Working Group had prepared a proposal which has deeply disappointed all reasonable citizens hopeful citizens that the new law on elections will legally guarantee their fundamental human and civil rights. Practically, everyone was let down apart from the ruling national-political oligarchies.

During twenty-day public discussion organised by the Sarajevo daily the "Evening Paper" with the participation of 62 representatives of political parties, non-governmental organisations, civil associations for the protection of human rights, refugees associations, individuals, as well as members of the Working Group, authors of the draft were literally buried under a veritable avalanche of negative opinions.

In this poll of sorts, as much as 70 percent of participants spoke in very negative terms of the draft, and even members of the Working Group did not hide their dissatisfaction. "Prevent ethnic homogenisation", "Music to national parties' ears", "A law against equality", "Refugees will boycott the elections", " A new obstacle for the return", "A farce and a fascist call for the ethnic division of B&H", "The OHR and OSCE hiding behind the Constitution" - were only some expressions of the public discontent with the offered draft. In addition, the public clearly stated its dissatisfaction with the fact that the document was not published in its entirety as its "summary", in the OSCE interpretation, only made this rather complicated legislative and electoral problem even more vague.

There are many serious reasons for this general dissatisfaction and deep disappointment with the offered document.

Namely, the draft envisages some minor (positive) novelties which, in all fairness, are not without significance but are far from what the citizens have expected. The most important novelties, such as open lists, preferential voting system, and even new regulations according to which there must be 30 percent of women on all ballots, and some minor changes (which the public instantly dubbed "cosmetic") actually represent a compromise which, it seems now, was the only thing that the members of the Working Group were able to make.

What caused the greatest dissatisfaction of the citizens was the fact that the draft supports ethnic discrimination among citizens because in the part on the election of the members of the Presidency or Chamber of the Nations of the Parliamentary Assembly because it denies both passive and active right to vote of at least one third of the electorate (i.e. citizens). Actually, thus the draft drastically violates fundamental human rights of the B&H citizens in various forms which, in this case, makes it an absolutely discriminating and unacceptable document.

Both members of the Working Group and OHR and OSCE representatives tried their best to defend this unnatural and essentially contradictory proposal justifying its contents with the existing constitutional-legal restrictions which primarily result from the Dayton Peace Accords and also the B&H Constitution. But, in doing this they failed to invoke precisely those (most important) articles and paragraphs of these two documents which prescribe rigorous protection of human rights and prevention of any kind of discrimination, and particularly ethnic discrimination. For example, Article 7 of the General Frame Peace Agreement for B&H, and particularly its Annex 6, as well as Article 2 of the Constitution of Bosnia and Herzegovina very clearly emphasize the inviolability of human rights. In relation to fundamental human rights and freedoms, Article 10, paragraph 2 of the B&H Constitution dealing with constitutional amendments, emphasizes that "no amendment to this Constitution can eliminate nor diminish any rights and freedoms mentioned under Article 2 of this Constitution, nor alter this paragraph". Paragraph 4 of the Article 2 of the B&H Constitution explicitly rules out any possibility of discrimination among the citizens of B&H on any grounds.

If, in addition to these explicit provisions, we bear in mind the fact that all international acts and charters on human rights and freedom and their protection are part and parcel of the Dayton Peace Accords and, consequently, of the B&H Constitution, and that they are older than the B&H Constitution itself, it becomes clear that there could be no legal, least of all political reason that could justify the "legalisation" of discrimination among people in the draft Law on Elections. Therefore, if legal experts claim that there had been and still exist constitutional obstacles to formulating a non-discriminating electoral law, then for the sake of properly informing the citizens, but also in order to ease their own conscience, they could have insisted on these affirmative provisions of the Dayton Peace Accords and the B&H Constitution and pointed out their primary validity and merits over all other discriminating provisions which are undoubtedly many.

True, no one had the right to demand of the members of the Working Groups to violate the existing B&H Constitution, but it is clear even to an ordinary man who is not an expert on the constitutional-legal problems, that the Constitution can be changed according to a specified procedure and that in the case of the draft Law on Elections an initiative can be launched for the adoption of an constitutional amendment with a view to annulling the discriminating provisions and making the new Electoral Law a truly democratic document. If that is the only way of preventing any discrimination, including the discrimination of citizens in electoral legislation, and it is the only way, then members of the Working Group must insist on that and refuse to formulate a law that would discriminate citizens and violate and endanger their rights and freedoms in many other segments.

For in the long-run, such a law, if it were adopted, would permanently divide Bosnia and Herzegovina in ethnic, political and geographic respect and confirm and consolidate ethnic homogenisation of the population which would mean that, in addition to many other negative effects (obstruction of the return of refugees and displaced persons, restriction or denial of various civil rights, infringement of the freedom of movement, etc.), it would definitely and permanently exclude B&H from all European and world integration processes.

That is why there is still hope that, despite strong resistance of the ruling national-political oligarchies (naturally, always "in the name of their people"!) to a radically more democratic wording of the new permanent electoral law on which the public insists, the proposed draft will not be accepted either by the Steering Board of the Council for the Implementation of Peace or the Council of Europe, institutions for whose consideration and approval the draft was submitted. If fundamental European and world human right standards are observed then it would not be either logical or good to adopt a law which determines the destiny of the state of Bosnia and Herzegovina while recognizing the discrimination among the people and their fundamental rights and freedom. It is the obligation of precisely the international community, whatever that term may mean, to ensure the application of these standards notwithstanding strong resistance of local "nationalcracies". For, it is only without empty phrases and honeymouthed rhetoric that the consistent implementation of the Dayton Peace Accord can be secured.

During two summer months and with the assistance of some renown non-governmental organisations, the OSCE had organised a public campaign among citizens of many B&H towns so as to find out what they wanted from the new electoral system. Assuming that it was launched with the best intentions, it cannot be denied that many clear and unambiguous answers were given - the citizens were willing to take the responsibility for the destiny of their country, but without the discrimination and violation of their rights and freedoms. Unfortunately, the draft Law has mostly disregarded their demands with the mentioned justification of the Working Group.

It is obvious that the "answer" of the Steering Board of the Council for the Implementation of Peace and the Council of Europe has arrived. Citizens of the B&H still do not know what the integral text of the draft looks like, and are even less aware of the contents of the long-awaited answer of the competent European institutions. It is not clear why is this all kept secret from them, but what is clear is their unhidden dissatisfaction with the treatment of the OHR and OSCE which opens up the possibility for this practice to be boycotted in the future.

Now the OSCE is planning a new public debate, this time allegedly about the concrete text of the Law. Will the public be fully informed of the observations of the mentioned European institutions beforehand is not only a rhetorical question. With their answers and even more clear demands, the citizens have confirmed their commitment to the provisions of the international human rights documents, and moreover, their dedication to the idea of the democratisation and development of the civil society in B&H as an integral part of Europe and world at large. But, if the new public debate on the draft Law on Elections ends like the previous one, then it should not be organised at all, nor allow such waste of time, energy and money. It seems that this new public debate should be actually organised with a view to initiating the adoption of Constitutional amendments since that is the only way to realise the wishes, demands and hopes of the citizens of Bosnia and Herzegovina. Naturally, if anyone still gives a damn.

Slavko SANTIC

(AIM, Sarajevo)