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South Slavic: February 8, 2000

8 February 2000, Volume 2, Number 8

What Kind Of Election Law For Bosnia? Part I

Mr. Karabeg: In today's Radio Most (Bridge), we are going to discuss what kind of electoral law Bosnia-Herzegovina should have. Our guests are Sabrija Pojskic, who is a member of the steering committee of the Social Democratic Party of Bosnia-Herzegovina in Sarajevo; and Nikola Spiric, who is president of the Democratic Party of Banja Luka and Krajina.

Mr. Pojskic, your party has drafted an electoral law that is different from the one proposed by the Office of the High Representative for Bosnia-Herzegovina and the Organization for Security and Cooperation in Europe. You claim that your bill is in accordance with European standards, while the one proposed by the international representatives is not. What makes you think so?

Pojskic: We think that the bill drafted by the group from the Office of the High Representative denies basic human rights and liberties, especially in terms of universal and equal suffrage, the right of a citizen to vote and to be elected. The bill contradicts not only the European Convention on Human Rights and Liberties, but also many other conventions, such as, for example, the International Agreement on Civil Rights. One should emphasize that the European Convention has the precedence over local laws and that those international conventions are an integral part of the Constitution of Bosnia-Herzegovina.

Pojskic: The bill also contradicts some passages of the Constitution of Bosnia-Herzegovina, especially those against any kind of discrimination concerning human rights and liberties. Let me give you the most obvious example of discrimination and violation of European standards on human rights. According to the present electoral law, a Serb from the Federation cannot be elected a member of the Presidency of Bosnia-Herzegovina, because members of the Presidency from the Federation must be a [Muslim] or a Croat, while the one from the Republika Srpska must be a Serb. It means that a Serb from the Federation of Bosnia-Herzegovina or a [Muslim] or a Croat from the Republika Srpska cannot run for a post in the Presidency of Bosnia-Herzegovina. The same goes for deputies of the House of Peoples. It means that approximately one-half of the population of Bosnia-Herzegovina is denied the right to elect and to be elected.

Spiric: As far as the electoral law of Bosnia-Herzegovina is concerned, one must first consider the role of the entities as specified in the Constitution of Bosnia-Herzegovina, as well as the role of "the people" as defined by the constitutions of the entities. The bill proposed by the Social Democratic Party does not take into consideration that fact [that Bosnia is divided into two entities], and therefore one might say that their bill expresses the tendency towards treating Bosnia-Herzegovina as a unitary state.

This is contrary to the Dayton Agreement and the Constitution of Bosnia-Herzegovina, [which clearly provide for the two entities with their specific rights and legal status]. That bill openly attacks the autonomy, authority, and constitutional and judicial structures of the entities.

The difference between the bill proposed by the Social Democratic Party and the one proposed by the Office of the High Representative is that the latter is far more realistic. It respects the territorial, judicial, and political structure of Bosnia-Herzegovina and tries to find the best possible solution through compromise.

Pojskic: I think that one cannot draw such a conclusion from our electoral bill. We assume that Bosnia-Herzegovina is a state of citizens and peoples with equal rights, made up of two entities with three "constitutional peoples" [Editor's note: "constitutional peoples" --"narodi"--or "peoples of the state" is an important and long-standing concept in Yugoslav law, according to which there are these first-class citizens and the lesser "minorities"--"narodnosti." Under current Bosnian legislation, Serbs are the "people of the state" in the Republika Srpska, while Muslims and Croats share this distinction in the Federation. A key issue among non-nationalists and some Muslim leaders is making all three peoples completely co-equal throughout Bosnia-Herzegovina.]

Nevertheless, it is very important for the three peoples to be "constitutional" on the entire territory of Bosnia-Herzegovina. If that is not the case, if that is not made clear in the electoral law as well, then basic human rights and liberties are endangered. For example, Mr. Spiric used to live in Sarajevo before the war. Why should he, as a Serb, not be allowed to run for the Presidency of Bosnia-Herzegovina if he still lived in the Federation, but have that right because he lives in the Republika Srpska.

The principle of universal suffrage must not depend on the whereabouts of a person. Therefore, our bill does not want to make Bosnia-Herzegovina into a unitary state. All we want is that the European Convention on Human Rights and Liberties be applied. If we want Bosnia-Herzegovina to enter the Council of Europe and the European Union as soon as possible, then we have to respect European standards of human rights and liberties.

Spiric: Bosnia-Herzegovina should preferably become a member of the European Union, but the Bosnia described in the Constitution and the Dayton Agreement, not a Bosnia of someone's imagination. Wishful thinking about what Bosnia-Herzegovina should be is one thing, but reality is quite different.

I would like to remind my colleague Pojskic that their bill contains several solutions that contradict the Constitution of Bosnia-Herzegovina and the constitutions of the entities. For example, they propose that deputies of the House of Peoples and of the Parliamentary Assembly should be elected on the entire territory of Bosnia-Herzegovina [and not on the basis of each entity], as well as that every voter can elect all three members of the Presidency [and not just the one of their own ethnic group]. That contradicts the Constitution of Bosnia-Herzegovina. The electoral law must respect the constitutional reality instead of offering solutions based on the expectation that the Constitution would be modified.

Pojskic: Mr. Spiric, you must be aware that present constitutional solutions are not consistent. The Constitution can be interpreted the way you claim, but the fact is that every member of the Presidency of Bosnia-Herzegovina should represent not only his own people, but also the other citizens of Bosnia-Herzegovina. As a [Muslim] and a citizen of Bosnia-Herzegovina, I am not only represented by Alija Izetbegovic, but also by [the Croat] Ante Jelavic and [the Serb] Zivko Radisic as well.

Members of the Presidency must bear in mind the interests of all. Our electoral bill assumes that Bosnia-Herzegovina is a multinational state, that the entities are multinational communities, and therefore that the equal rights of all the citizens must be respected, whether they are seen as citizens or as members of one of the three constitutional peoples.

Spiric: The Social Democrats have proposed their bill based on an idea of Bosnia-Herzegovina as they would like it to be. I appreciate that, since everybody has the right to his own concept of Bosnia-Herzegovina, but an electoral law must obey the stipulations of the Constitution, whether they are consistent or not. We cannot say: "This Constitution is inconsistent in this passage," and then rectify the lack of clarity of the Constitution by a law.

I think that the bill proposed by the Social Democrats is seriously burdened by the fact that their starting point is Bosnia as it was in 1990. I do not deny their right to do so; they would certainly like Bosnia-Herzegovina to be like that again.

Nevertheless, the current Constitution has defined Bosnia-Herzegovina differently. For example, the electoral law of Bosnia-Herzegovina cannot determine electoral principles for the entities. This is because the Constitution of Bosnia-Herzegovina has accepted the principle of a division of powers between the institutions of Bosnia-Herzegovina and those of the entities. I could understand the logic of the Social Democratic Party if you had said: "Let us not hurry with the electoral law until we have removed the inconsistencies of the Constitution." But you cannot rectify those inconsistencies with the electoral law. Name me one country in the world where an electoral law contradicts the Constitution.

Pojskic: That is not correct, our electoral bill respects the Constitution. To prove to you that we are right, let me point out that the Office of the High Representative has left out the stipulations about the election of the members of the Presidency in their latest electoral bill. They did so because they realize that they must first wait for the decision of the Constitutional Court concerning [the status of the three constitutional peoples in each entity].

Spiric: I do not think that the international community was right in this case. Instead of imposing a compromise on all three sides in order to get a new electoral law, the Office of the High Representative has satisfied the wishes of only one side. Therefore, what could happen is that, when the parliament votes on the document, all the deputies from the Federation could vote in favor of the bill, while all those from the Republika Srpska could vote against. In that case, Bosnia-Herzegovina would not get an electoral law based on consensus; it would have to be imposed by the High Representative again.

I do not think it is good that the way of electing the members of the Presidency is indefinitely postponed until the Constitutional Court reaches the decision on the constitutional character of the peoples.... One should not forget that Alija Izetbegovic was the one to start the procedure before the Constitutional Court of making all the three peoples constitutional on the entire territory of Bosnia-Herzegovina. I must say that there is no single Serb in the Republika Srpska who trusts Alija Izetbegovic and his initiative.

Pojskic: I would not elaborate on whose initiative it is. I could not care less about that. It does not matter who started it. What does matter is that the electoral law is made to conform to democratic European norms.

Spiric: First it has to conform to the Constitution. An electoral law must be based on the Constitution.

Pojskic: The bill is based on the Constitution. The problem is what one prefers: whether one prefers human and civil rights or the predominance of ethnic considerations.