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In December 2016, the Constitutional Court of
Bosnia and Herzegovina (BiH) ruled partially in favor of a complaint
lodged by former Croatian Democratic Union (Hrvatska demokratska
zajednica, HDZ) politician Božo Ljubić. At issue was the state
election law provision dictating that cantons delegate at least one
representative from each of the country’s three main ethnic groups
to the Federation BiH House of Peoples. Ljubić argued that the Croat
influence in cantons with majority Bosniak populations was unfairly
diminished in the selection of delegates. He argued that Croat
candidates therefore should be elected only out of majority Croat
cantons, thereby ensuring that only Croats vote for Croat delegates.
In effect, Ljubić asked the Court to forbid the Croats from
Sarajevo, Tuzla and Bihać from becoming members of the House of
Peoples of Federation of Bosnia and Herzegovina.
The Court partially agreed with Ljubić. The ruling
struck down a portion of the country’s election law, stating that it
must be amended within six months, without specifying changes. In
previous, unrelated cases, the Court prescribed temporary solutions
that enabled a ruling implementation; however, it declined to do so
in this instance.
This has led some, especially HDZ leadership, to
argue that a legal vacuum now exists, claiming that the failure to
amend the law could render the October general elections invalid or,
alternatively, prevent government formation at the Federation entity
level, ultimately leading to a total political paralysis and the
collapse of the social security system.
This argument is not legal, but political.
The Constitution of the Federation BiH clearly
regulates the election of delegates to the entity and state-level
House of Peoples, as based on Annex VII of the Dayton Peace
Agreement (DPA). Annex VII provides that all citizens can live and
exercise their civil and political rights – including the right to
vote and be elected – in their pre-war residence, as well as
throughout the country. Furthermore, the Federation entity
Constitution states that the 1991 Census has to be used in
determining the number of delegates in the Federation House of
Peoples. Disregarding this requirement amounts to rewarding the
results of ethnic cleansing and genocide.
The said provisions of the Federation Constitution
remain fully valid. Moreover, they are in line with the European
Court of Human Rights rulings. Consequently, some of the members of
the Central Election Commission (CEC) have publicly stated that the
CEC can and will use the Federation BiH Constitution and the valid
provisions of the state election law to elect delegates to the
Federation entity House of Peoples.
The HDZ appears to be misreading the Court’s
decision in order to justify its planned prevention of the election
of delegates from four cantons controlled by the HDZ (West
Herzegovina, Posavina, Livno, and Herzegovina-Neretva) to the
Federation entity’s House of Peoples. The ruse of electoral
illegitimacy and the resulting crisis is simply another effort
toward the HDZ’s territorial ambitions of creating a so-called
“third entity.” In this, the HDZ leaders are publicly backed by the
Government of Croatia and the Russian Federation.
The HDZ staged a similar production following the
2010 election, when it tried to block government formation by
refusing to elect delegates from the four aforementioned cantons.
Their abstention from political participation failed – despite
support afforded by Milorad Dodik’s SNSD – when the Office of the
High Representative (OHR) intervened to enable the formation of the
Federation BiH government.
The DPA envisages the OHR as the final arbiter
precisely because no other final adjudicating authority exists
within the legal order established by the DPA, of which Constitution
of BiH is an integral part. Should the HDZ employ the same tactic
following the October 2018 elections, the OHR can end the impasse by
intervening in the same manner as in 2011 or, alternatively, by
simply imposing the Federation BiH 2019 budget before the December
31, 2018 deadline. Marinko Čavara, the HDZ-appointed Federation BiH
president, can dissolve the Federation BiH parliament only if the
legislative body fails to adopt the entity budget before the end of
calendar year.
Furthermore, the HDZ cannot prevent formation of
the BiH Council of Ministers, which is elected solely by the
state-level House of Representatives. In its 2011 decision, the
Constitutional Court recognized the legal status of Sulejman Tihić
as a standing member of the BiH House of Peoples despite the HDZ’s
and SNSD’s claims that the delegates’ previous mandates expired
after new elections had been held. The Court ruled in favor of the
continuity of government in principle, meaning that officials must
continue performing their tasks until new ones are sworn in. Thus,
the state-level legislature continued to function despite HDZ and
SNSD belligerence.
Under this precedent, similar attempts at
disruption by HDZ (or other) delegates will not lead to the
disruption of the BiH legal order, as the HDZ and others falsely
claim, nor will it be the end of BiH as an internationally
recognized state, as both the HDZ and SNSD hope. The Ljubić ruling
will not render invalid the results of the 2018 general election or
deny government formation as long as the international community
stands by the letter and the spirit of the DPA. The OHR should
continue to fulfill the legal obligation thrust upon it by the
international guarantors of the DPA, of which the US – the architect
of the Bosnian peace – is of supreme importance.
The OHR and the international community cannot
allow the 2013 Census results to be used as the basis for
determining the formula for allocation of House of People delegates
because that would directly violate the Federation BiH Constitution,
annul the Annex VII of DPA, and amount to accepting the results of
ethnic cleansing.
The implementation of the Ljubić decision in the
spirit of HDZ’s interpretation would be equivalent to a contemporary
“Three-Fifths Compromise.” The United States has a moral obligation
not to allow such “solutions” to be implemented under its watch.
Furthermore, the implementation of the Ljubić
decision in the spirit of HDZ’s interpretation would only embolden
HDZ’s and SNSD’s ever-growing separatist ambitions, spelling
instability and a likely return to conflict in the not too distant
future – a security nightmare in the heart of Europe that would be
more than welcomed by the Kremlin.
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