IDPI

Basic Principles, Models and Proposals for BiH Election Law Reform

Basic Principles, Models and Proposals for BiH Election Law Reform

Basic Principles, Models and Proposals for BiH Election Law Reform
April 05
11:23 2018

IDPI (Institute for Social and Political Research) has developed basic principles to guide the electoral reform process in Bosnia & Herzegovina (BiH). These principles were formulated in line with the requirements of the Dayton Accords and the rulings of the Constitutional Court. We welcome our international friends of Bosnia & Herzegovina, especially the United States, to encourage all parties to reach a solution in line with these basic principles before the 8 May 2018 deadline. The May deadline represents the latest date that the central election commission of BiH can successfully organize a free, fair and legitimate national election in October. IDPI has also developed specific electoral reform models, should the relevant parties need additional substantive ideas once there is political will to actually complete the reform process.

 

  1. The Presidency

Model P 1 would resolve, at the Presidency level, both the Ljubić case of the Bosnia and Herzegovina (BiH) Constitutional Court (U-23/14) and the Sejdić-Finci and Zornić rulings of the European Court of Human Rights (ECHR) by only changing the election law and without any amendments to the Dayton constitution.

Model P 2would resolve, at the Presidency level, both the Ljubić case of the Bosnia and Herzegovina (BiH) Constitutional Court (U-23/14) for the Presidency and the Sejdić-Finci, Zornić, and Pilav rulings of the European Court of Human Rights (ECHR) with changes to the election law and minimal amendments to the Dayton constitution.

 

  1. The House of Peoples

Model DN 1would resolve, at the House of Peoples of the Federation of BiH and the House of Peoples of BiH level, the Ljubić case of the Bosnia and Herzegovina (BiH) Constitutional Court (U-23/14) and would allow the 2018 general election results to be fully implemented by only changing the election law and without amendments to the Dayton constitution or the Federation of BiH (FBiH) constitution.

Model DN 2would resolve, at the House of Peoples of the Federation of BiH and the House of Peoples of BiH level, both the Ljubić case of the Bosnia and Herzegovina (BiH) Constitutional Court (U-23/14) and the Sejdić-Finci and Zornić rulings of the European Court of Human Rights (ECHR) with changes to the election law and minimal amendments the Dayton constitution and the Federation of BiH (FBiH) constitution.

 

Proposal A (P 1 + DN 1) – fully resolvesthe Ljubić case at all levels and the Sejdić-Finci and Zornić rulings at the Presidency level (but not at the House of Peoples of BiH level). It requires changes tothe election law only, without any amendments to the Dayton constitution.

 

Proposal B (P 2 + DN 2) – fully resolvesthe Ljubić case and the Sejdić-Finci, Zornić and Pilav rulings at all levels. It requires changes tothe election lawand minimal amendments to the Dayton constitution and the Federation of BiH (FBiH) constitution.

 

The primary goal of these proposals is to allow the conduct of legal and legitimate October 2018 national elections. In other words, the goal of these proposals is to ensure that the elections will be held according to the BiH Constitution and that the election results will be fully implemented at all levels of government. If election law is not amended according to the Constitutional Court of BiH ruling U-23/14 (Ljubić), then the national elections can be held, but their results will not be fully implemented because it will not be possible to form the House of Peoples of the FBiH, and therefore, also it will not be possible to form the House of Peoples of BiH. Without the House of Peoples of the FBiH, it will not be possible to elect the President of the FBiH and two vice-presidents, it will not be possible to form the government of the FBiH, and the Parliament of FBiH will not be able to function without the upper house. Moreover, without the House of Peoples of BiH, neither House of Representatives of BiH, nor the Presidency of BiH nor the Council of Ministers of BiH will not be able to fully function. In this case, the only level of government which will have full electoral legality and legitimacy and fully function will be Republika Srpska (National Assembly and Council of Peoples of Republika Srpska, the President of RS and the Government of RS) and cantons inside the FBiH (assemblies and governments of all ten cantons).

Such situation would be very risky and dangerous, both politically and in terms of security. It would also result in institutional and legal vacuum which could result in complete destruction of the Dayton structure and threaten not only the functionality and political stability, but also the very existence of BiH as an independent and united country.

Therefore, we believe that it is necessary to do all legal and legitimate measures in order to align the election law with the Constitutional Court of BiH ruling in Ljubić case (U-23/14) and by doing so ensure that October 2018 national election results can be fully implemented. That is a minimal requirement that every proposal of the election law reform has to fulfill. Other than fulfilling the above-mentioned requirement, it is necessary to reform election law in order to implement as many ECHR rulings as possible. Therefore, IDPI proposals of the election law reform is divided into two parts, or more specifically, two proposals – Proposal A and Proposal B.

Proposal A does not resolve all the issues but it allows for the full implementation of the national election results and partially resolves ECHR rulings, and is doing so without any constitutional amendments, but rather just election law amendments. Therefore, it would be easier and faster to implement that proposal given the fast-approaching deadline. Proposal B resolves all the issues of Ljubić ruling of the Constitutional Court of BiH and all the issues of Sejdić-Finci, Zornić and Pilav rulings of the ECHR, but it requires amendments to both the election law and the constitution. Therefore, it is much harder and slower to implement in given the fast-approaching deadline.

If in this, pre-election phase it is not possible to adopt the more-encompassing Proposal B due to the fact that it requires higher number of changes and wider political and party consensus, IDPI recommends to first implement Proposal A in order to ensure full implementation of election results. After elections, IDPI recommends that the newly elected officials, which would have full legitimacy, could then start a wider reform process in the atmosphere of compromise and in stable political environment and implement Proposal B which fully resolves all three ECHR rulings.

 

Basic Principles

The specifics of the electoral reform should be worked out among the relevant political parties but, based on the requirements of the Constitution and the rulings of the Constitutional Court and European Court of Human Rights, any solution should adhere to the following basic principles:

  1. Uphold the Constitution and the principles of equality and constituent status of all Constituent Peoples, the principles which the Constitutional Court of BiH declared “overarching principles” of the whole BiH Constitution, on July 1, 2000 in Decision U 5/98-III, and therefore the whole Dayton Agreement in general.
  2. Implement the Constitutional Court Rulings U-23/14 and U-3/17, which found that the election law is discriminatory against the rights of the Constituent Peoples to elect their legitimate representatives and that the law must be amended.
  3. Uphold the Constituent Peoples’ status and rights. Constituent Peoples’ rights should be consistent with the Constitutional Court ruling from 2000 (U-5/98) on the status of Constituent Peoples and interpreted according to the Constitutional Court rulings U-23/14 and U-3/17, which confirm that political representatives of Constituent Peoples are primarily representatives of the electoral will of the Constituent Peoples, rather than necessarily members of said Peoples. In principle, this means, that Croat representatives would not necessarily need to be ethnically Croat in order to represent Croats but that they should have received a majority of Croat votes in BiH elections (with the same principle applying for Bosniaks and Serbs).
  4. Implement the Sejdić-Finci ruling of the European Court of Human Rights from 2009, which would allow members of national minorities and all other citizens to participate in all elections and be elected to the country’s Presidency and other high-level political posts.
  5. Support the uniformity of electoral law rules across the whole of BiH, uphold the equality of Constituent Peoples, and encourage direct and proportional representation to best represent the electoral will of people in BiH.
  6. Ensure that any reforms bring BiH further towards EU integration by addressing reforms necessary for EU membership.
  7. Fulfill the Brussels Agreement of 2013, signed by all major political parties, requiring that all Constituent Peoples can elect their legitimate representatives at all levels, preventing one Constituent People from electing representatives of other Constituent Peoples.
  8. Retain all current geographic electoral units, including cantonal or entity borders, so that the electoral issue can be resolved with the least amount of complexity.

In addition to these basic principles, we have developed specific electoral reform models should the relevant parties need additional substantive ideas once there is political will to complete the reform process prior to 8 May 2018 deadline.

We are determined to help resolve the constitutional crisis with our electoral law proposal which:

    • upholds the Dayton Constitution,
    • protects the Constituent Peoples’ equality,
    • fulfills the Constitutional Court Ljubić ruling,
    • resolves the Sejdić-Finci, Zornić and Pilav issues, and
    • opens the EU/NATO path for BiH.

This approach is based upon guaranteeing equality, uniformity, and direct representation principles across BiH, and prevents one Constituent People from electing representatives of another Constituent People.

We are ready to discuss any modifications of the proposal, or any alternative proposals, provided they are framed in a way that respects our principles.

 

Benefits of IDPI Proposals

  1. Both Proposal A and Proposal B allow for the October 2018 national elections to be held and fully implemented. This prevents a total blockade of the constitutional, legal and political system in BiH, which would result in unforeseeable political and security consequences, which will inevitably happen if the election law of BiH is not reformed according to the U-23/14 (Ljubić) ruling of the Constitutional Court of BiH by 8 May 2018.
  2. Both Proposal A and Proposal B require no ethnic or national identification of either voters or candidates in the whole process. Anybody – no matter their ethnicity or nationality – can vote in every election.
  3. Both Proposal A and Proposal B allow that every citizen, no matter their ethnic or national identification, has a right and possibility to become a candidate for all levels of government and participate in election process for all levels of government during national elections.
  4. Both Proposal A and Proposal B respect constituent status and equality of all constituent peoples, as well as the right of Others (national minorities and other citizens) to become candidate and participate in election for all levels of government during national elections.
  5. Both Proposal A and Proposal B ensure that members of one constituent peoples cannot decisively influence election of representatives of two other constituent peoples or the election of representatives of Others.
  6. Both Proposal A and Proposal B ensure that all specific demos, which are part of the national election, are guaranteed the fulfillment of the principle of legitimate representation, as well as the principle of the equal value of the vote.
  7. Both Proposal A and Proposal B does not move nor create any new internal borders, either temporary or permanently. This ensures that the election law reforms needed for the full implementation of the national elections does not create any reason for the change of the two-entity structure or change in the current administrative and territorial borders within the entities.
  8. Proposal A, at the entity level, abolishes any form of the electoral discrimination on the administrative and territorial basis, for both the members of the constituent peoples and members of Others. Proposal B, at the country level, abolishes any form of electoral discrimination on the administrative and territorial basis, for both the members of the constituent peoples and members of Others. In practice, this means that a Croat in Sarajevo or Goražde has the same vote value and ability to elect and be elected as a Croat voter in Mostar or Široki Brijeg. The same is true for Bosniaks, Serbs and Others all across Bosnia and Herzegovina.
  9. Both Proposal A and Proposal B promote electoral system with more equality, transparency, and uniformity, based of mathematical formulas rather than on national identification of voters or candidates or creating new electoral borders.
  10. Both Proposal A and Proposal B stimulate further democratization, diversity of political thought, and pluralism among political options within the three constituent peoples. This is especially important for the Croats, who have the least developed political party pluralism, which lead to the pronounced domination of only one political party and one political option.
  11. Reaching a political agreement, either for Proposal A or Proposal B, could relax the ethnic tensions in the country and allow for election of legitimate representatives of constituent peoples and the Others in October. These representatives could then, with legitimacy gained in the democratic, free and fair elections, build on the election law reform success and find compromise for other much needed reforms in BiH, primarily economic and judicial reforms.
  12.  The reform of the election law, either through Proposal A or Proposal B, would be the biggest internal political success since the Dayton, which could bring back the faith of BiH’s citizens in a democratic and functional country which works on agreements and consensus rather than the current common practice of political bickering exclusiveness and stalling.
  13.  Due to the complexity, asymmetry and the lack of transparency of the current election law it is hard to establish the system of responsibility of elected officials to those who elected them. Through the implementation of Proposal A or Proposal B, it would be completely clear who elects who, and who has responsibility to whom, or in other words, the voters of each specific demos would finally be able to assess whether those who they elected fulfilled their expectations or not, and based on that, either reward or punish them during the next election.
  14. The reform of the election law, either through Proposal A or Proposal B, would create exceptionally favorable constitutional, legal and political prerequisites for BiH’s further continuation along the EU and NATO path.

 

Documents

Full proposal and auxiliary documents can be downloaded from the following links:

IDPI Proposal

IDPI Algorithm and Appendix

IDPI Questions and Answers

IDPI Merits of the Court Rulings

IDPI Entity and National Veto

We suggest to first read the Merits of the Court Rulings followed by the Algorithm and Appendix. Then we suggest to read the full proposal, and finally to read the Questions and Answers.

 

 

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