|28. 0ctober 2022 -21
DECISIONS OF THE HIGH REPRESENTATIVE IN BOSNIA AND HERZEGOVINA – CONTRIBUTING TO A LAW-BASED STATE, OR CONTRIBUTING TO LEGAL UNCERTAINTY IN BOSNIA AND HERZEGOVINA?
On the very day of general elections in Bosnia on October 2, 2022, the High Representative announced two decisions that went into effect immediately. These referred to a change of rules for the election of the President and two Vice Presidents of the Federation entity of Bosnia and Herzegovina, the manner of electing the Federation entity President from among three persons nominated for this position, the manner of electing delegates to the House of Peoples, the manner of determining the number of delegates from each constituent ethnic group and “others” from every cantonal parliament, and finally the manner of filling the seats of remaining delegates.
Without doubt, the most important part of the amendments to the Federation Constitution concerns indirect elections conducted exclusively in only one of the two entities of Bosnia and Herzegovina, i.e. the Federation, but not in the Republika Srpska entity. And this was announced after the confirmation of results of the general elections. In other words, when it comes to the Law on Changes and Amendments to the Election Law, all the provisions of this law refer to indirect elections in the Federation, which changes the legal framework for conducting the electoral process on the entire territory of Bosnia and Herzegovina.
The High Representative’s afore-mentioned activity can be analyzed from the formal legal standpoint as well as from the material legal aspect.
The formal legal standpoint can be viewed from the moment when the High Representative made the contentious changes in the Constitution and in the Electoral Law. There is a question why this was done on the very evening of the elections. That in itself is contrary to democratic standards and transgresses the principles of legal jurisprudence of the state, leading to legal uncertainty. There can be no doubt that this is an issue of legal activity that led to legal uncertainty, countermanding democratic principles of state jurisprudence and contrary to international standards as stated in the European Convention on Human Rights, Protocol 1, the third paragraph of which guarantees free, fair and democratic elections. There should be no changing of electoral regulations during the year in which elections are held, except in instances where international obligations have to be fulfilled. From the material legal aspect, these decisions have no rational or objective justification and they do not result in a more efficient functioning of the Federation entity. They also do not simplify the complicated constitutional structure of the state and they do not in any way deal with institutions of governance in the other entity, nor do they eliminate the ongoing discrimination inherent in the constitutional and legal system of Bosnia and Herzegovina. What would be needed is the role of the High Representative in Bosnia and Herzegovina in harmony with the communique of the Venice Commission on the implementation of peace in Bosnia.
The High Representative’s authorities to assist in resolving contentious situations in Bosnia and Herzegovina, according to Annex 10 of the Dayton Peace Agreement, are welcomed. But the High Representative needs to respect international democratic standards, because Bosnia and Herzegovina ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms, which in fact is an integral part of the Constitution of Bosnia and Herzegovina. This has priority over all other rights.
Now it is the turn of the Constitutional Court of Bosnia and Herzegovina as the defender of the Constitution, of the rule of law and of democratic values.
We arrive at the conclusion that the High Representative is hostage to the myth of the fatal Dayton ethnic formula, which is as deceptive as the myths about Bosnia that circulated during the war. This includes treating all sides as equally at fault for causing the war, the functioning of the arms embargo allegedly in the interests of peacemaking though it impacted on the legal defense of the state, stereotypes about the deployment of thousands of NATO troops to stop the war, etc. It is deceptive also because it negates the ratified Constitutional obligation as stated in the European Convention for the Protection of Human Rights and Fundamental Freedoms, which supersedes the Dayton Constitution. This is in any case a right that must be implemented through the entirety of the Dayton Constitution and all other laws of the country.
Summary of Session of 23 October 2022
The presenter at this session was: Alma Colo, Member of House of Representatives of Parliamentary Assembly of Bosnia and Herzegovina
Adil Kulenović, President
|Association of Independent Intellectuals – Circle 99 (Bosnian: Krug 99), a leading Bosnian think-tank, was established in Sarajevo in 1993, in the midst of the Bosnian war (1992-1995), while the capital was under siege. Circle 99 provides a platform to bring together intellectuals of various professional and ethnic identities; university professors, members of the Academy of Sciences and Arts of Bosnia and Herzegovina, artists, journalists, entrepreneurs, diplomats, and other prominent figures from Bosnia and from abroad. Multidisciplinary discussions and initiatives are held each Sunday throughout the academic year, in the form of regular sessions about politics, science, education, culture, economy, and other societal issues. The overall goal is to sensitize the public towards a democratic transformation, achieving and maintaining peace, and integration of modern Bosnia into the community of countries fostering liberal democracy. Circle 99 has been declared an organization of special significance for the city of Sarajevo.