Kilometers of texts have been written about the reform of the electoral law in Bosnia and Herzegovina (BiH), and this topic, which has never been concluded, has reached hundreds of addresses of foreign officials.
Everyone agrees that this law should be changed, but no compromise is in sight, and the legal entanglements show that there are a number of paradoxes in the whole process.
Waiting for Schmidt
After imposing technical changes at the end of July that should improve the integrity of the election process, Schmidt spoke about further actions for Federal Television. On that occasion, he said that he was ready to impose key political provisions. He emphasized that he had read the verdict of the Constitutional Court of BiH in the “Bozo Ljubic” case at least ten times and that he was sure that he understood it.
The essence is hidden in the aforementioned judgment, which was pronounced by the court on December 1st, 2016. At that time, the Constitutional Court declared unconstitutional the Electoral Law of BiH, according to which a minimum of one representative from each constituent nation is elected to the House of Peoples of Federation of BiH (FBiH). In the explanation of the verdict, the Constitutional Court of BiH also refers to the FBiH Constitution, however, the state constitutional court then, and even later, never challenged the provision of the FBiH Constitution, which states that one representative from each constituent nation is elected to the House of Peoples of the FBiH if one is elected.
What is the essence?
This is where we come to the essence. In the Electoral Law of BiH, the article that was declared unconstitutional contains a specific provision that one representative of each constituent nation is elected from each cantonal assembly. However, the FBiH Constitution contains a conditional provision. This means that one representative of each constituent nation is elected if one is elected. Therefore, if he is not elected, he will not be delegated to the House of Peoples.
Why did Borjana Kristo withdraw her appeal?
The essence of the criticism of HDZ and Croatian political representatives in general in the context of the verdict in the “Bozo Ljubic” case is based on the explanation of the verdict, not on the merits. And from a legal point of view, merit is the basis. In the merits of the verdict, the Constitutional Court of BiH did not dispute the point of the FBiH Constitution, which is referred to in the explanation.
The HDZ was also aware of this, so shortly after the verdict in 2016, they prepared a new appeal. Borjana Kristo sent to the Constitutional Court of BiH for constitutional review the point of the FBiH Constitution in the part that states that one representative of each constituent nation is elected to the House of Peoples of the entity if such exists. So the plan was to overturn that conditional provision.
However, their plan was spoiled by the Office of the High Representative (OHR), i.e. the opinion that the legal team of the OHR sent to the Constitutional Court of BiH in which they explain in detail the five principles by which delegates are elected.
After the OHR’s explanation, Borjana Kristo withdrew her appeal, and the FBiH Constitutional Court’s ruling that one representative of each nation should be elected from each canton to the FBiH House of Peoples, if one was elected, was never contested. The only argument can be that neither Borjana Kristo nor HDZ believed that their appeal would pass, so they withdrew it.
The appellant’s legal paradox
So a paradox occurred. First, in his appeal to the Constitutional Court of BiH, Bozo Ljubic referred to the FBiH Constitution, because his goal was to overturn the provisions of the Election Law by referring to FBiH Constitution. And then Borjana Kristo, referring to the verdict of the Constitutional Court of BiH, wanted to overturn the provision of the FBiH Constitution on which Bozo Ljubic relied in his appeal.
Schmidt could now directly intervene in the FBiH Constitution and impose a decision on how the House of People will be filled, and he has the mandate and the right to do so.
However, the question arises as to why he would do this if not all legal mechanisms in BiH have been used. That is, the Constitutional Court of the state has never contested the contested provisions of the FBiH Constitution, because the appeal of Kristo was withdrawn, and no one ever filed a new one. In other words, the legal system of BiH has not yet said the last word, Klix.ba reports.
E.Dz.
