After Borjana Kristo appealed to the Constitutional Court of Bosnia and Herzegovina (BiH) in 2018, requesting the deletion of certain provisions of the Federation of BiH (FBiH) Constitution on the distribution of mandates in the FBiH House of Peoples, at the request of the Court, the Office of the High Representative (OHR) submitted a request in which, as the supreme interpreter of the Dayton Agreement, it delivered an opinion which compelled Kristo to withdraw her appeal.
The OHR’s 2018 opinion was an interpretation of Kristo’s request, which clearly challenged all the arguments put forward by the appellant, and the OHR’s conclusions are equally relevant today, especially in the context of pressure to carry out electoral reform at all costs. Before we look at the OHR’s position it is important to recall the content of the mentioned appeal.
With her appeal, Kristo questioned the constitutionality of principle 1/1/1 contained in the FBiH Constitution, which says that one Bosniak, one Serb, and one Croat from all ten cantonal assemblies must be elected to the House of Peoples of the FBiH Parliament. One year after the filing of the appeal, Kristo withdrew the appeal because, apparently, she received information that the Constitutional Court of BiH will not annul the 1/1/1 principle.
On the wings of the 2016 ruling of the BiH Constitutional Court in the Ljubic case, which essentially deleted parts of the Election Law that were not in line with the FBiH Constitution, Kristo hoped to overthrow the FBiH Constitution and not just raise the Election Law issue, but also the Constitution of the FBiH.
The difference between the Election Law and the FBiH Constitution was reflected in the fact that the FBiH Constitution contained a conditional provision that one Bosniak, one Croat, and one Serb would be delegated from each canton to the FBiH House of Peoples only if elected to the cantonal assembly, while in the Election law that provision was absolute. More precisely, if citizens do not elect at least one Croat, Serb, and Bosniak at the indirect elections to the cantonal assembly, one delegate seat will be transferred to another canton. The Constitutional Court only harmonized the Election Law with the FBiH Constitution, not the other way around.
In its opinion, the OHR said that the powers of the FBiH House of Peoples are within the competence of the FBiH: “Therefore, based on the case-law of the Constitutional Court, they do not fall within the exclusive competences of BiH, but represent the competencies that fall under the organizational autonomy of the Federation,” it was mentioned in the submitted opinion.
The most interesting part of the opinion is that Bozo Ljubic himself, a member of the Croatian National Assembly, who appealed to the Constitutional Court in 2014, did not challenge the 1/1/1 principle, ie the constitutionality of this provision, but referred to it, and that the mentioned provision of the FBiH follows the conditional option, not the absolute one. While Ljubic referred to this provision of the FBiH Constitution in order to open the issue of the Election Law and thus cause political chaos, four years later Kristo tried to challenge the same provision four years later, but was prevented by the OHR’s position.
During the negotiations in Neum, HDZ proposal was that members within certain ethnic caucuses in the FBiH House of Peoples be elected on a 16 + 1 basis, which in practice would mean that some cantons would not elect at least one delegate from each constituent people if such person is elected to the cantonal assembly.
Therefore, the HDZ proposal directly violates the principle 1/1/1 of the FBiH Constitution, so even the mere consideration of such solutions, in which Matthew Palmer and Angelina Eichhorst actively participated, was a complete disregard for the FBiH Constitution because amendments to the Election Law cannot delete the provisions of the FBiH Constitution without a decision of the FBiH Parliament, whose role has been completely ignored. The mediators had an open space to discuss the election of members of the Presidency of BiH and the manner of election of the House of Peoples of the Parliamentary Assembly of BiH (PABiH), which is disputed by the judgments of the European Court of Human Rights, and not on legitimate representation because the judgment “Ljubic” was implemented.
It was clearly stated that all changes would include only voting in the PABiH. Any participant in the negotiations, regardless of which party he belonged to, by agreeing to discuss the provisions of the election law determined by the FBiH Constitution, without including changes to the FBiH Constitution in the FBiH Parliament, is a reckless political move.
E.Dz.
Source: Klix.ba
