TransConflict is pleased to present the third and final part of a paper analysing ethnic electoral units in Bosnia and Herzegovina, produced by the Institute for Social and Political Research (IDPI), a member of the Global Coalition for Conflict Transformation.
By Dražen Pehar
Apart from being a direct consequence of a reasonable and persuasive interpretation of relevant constitutional provisions, the idea of ethnic electoral units has some further implications that speak in favour of implementation and promotion of such an idea. As I here argue, it is implementation of such an idea that would enable true democratization and pluralization of political life among Bosniaks as well as Croats in BiH. The idea is likely to ensure a sufficient amount of initial fairness, clarity, and safety in political landscape of the
Federation, without which a true democratization or pluralization cannot take place.
Imagine that we have a Croat electoral unit. Imagine further that a number of candidates from different political parties were registered to run for the posts in BiH Presidency. First, it is clear that all the parties will be a part of a process that leads towards a fair outcome. One constituent people elects their own representative, the other their own, and no imposition of electoral will takes place. This makes sure that all the parties and candidates view themselves as an equally valid part of a process that is truly legitimate and democratic. Secondly, as to the issue of clarity, it is very clear to the candidates that they need to address a specific portion of the population to gain their trust. They address the portion that will ultimately vote in favour of, or against, them. There will be no fudging, which is bound to have a positive impact on the clarity of political ideas and projects proposed by candidate. Additionally, individual candidates and parties will sense a natural need to make their profile distinct in relation to the competing candidates and parties. The differences that are now of lesser importance should thus become more important. Again, this is bound to have a positive effect on pluralization of political life within the BiH and Federation.
Thirdly, ethnic electoral units are likely to produce a sufficient amount of the sense of safety among Croats, while to Bosniaks such units may help to replace the false sense of safety and power with a sense of responsibility for those who will tomorrow represent them. Namely, the sense of safety is one of the key elements of democracy – it removes fear and an erroneous belief that the very existence of the people is at stake; this is likely to produce a more relaxed atmosphere, the sense that our own destiny is in our own hands, which is likely to improve cognitive quality of decision-making – those who vote in a more relaxed atmosphere, without a sense that their fundamental rights are endangered, are likely to strike a more balanced and reasonable view of the candidates than those who vote in the atmosphere of fear. All dictators and tyrants were keeping their people in the state of a paralyzing fear, in which some relations could not have been questioned or challenged, to ensure that the people were in need of a strong leader who guaranteed the unity and even survival of the group. That much we are familiar with from the history of political ideas and processes. Again, wee see why ethnic electoral units are bound to have a positive effect on the process of pluralization and democratization of politics in BiH.
There is a further, the fourth factor that strongly indicates that ethnic electoral units are likely to contribute strongly to pluralization and democratization of BiH politics. For a start, one should ask a simple question: who is bound by Željko Komšić’s decisions? Can his decisions, that are ultimately based on an erroneous and unconstitutional interpretation as embodied in the election law now in force, be binding at all, and for how long could they endure? Furthermore, can the decisions by the BiH Presidency of which Željko Komšić is a member be binding? I think the adequate answer to the question is in the negative. Željko Komšić does not represent BiH Croats; hence his decisions cannot bind Croats. Additionally, as he faces a competitor in the very Presidency in the figure of a competing representative of Bosniaks, his decisions cannot bind Bosniaks either. However, if the figure should not be taken as a competitor, but as an ally, then again we face a problem: in such a condition BiH Presidency is definitely not a site of true political pluralism and democracy. In fact, Komšić’s role seems to have been exhausted by the announcement of his electoral victory – it boils down to demonstration of Bosniak numerical might vis-à-vis Croats as well as of readiness of a number of Bosniaks to exploit unconstitutional election law and neutralize the will of a constituent people who, according to the constitution, Bosniaks are supposed to treat as a key partner.
Now, imagine that, instead of Željko Komšić, BiH Presidency seat is filled by an elected representative of the Croat people. The representative’s decisions, and the decisions by the Presidency as a whole, are likely to become both binding and, as they pass the test of three different policies, more authoritative. They become an outcome of sincere pluralism of views as held by the presidency members; it is only in such a condition that one can talk about consensus within the presidency or about a real democratic dialogue that reflects plurality of views and thrives on differences in opinion. This is a condition in which one can talk about BiH Presidency as an embodiment of multiethnic and pluralist BiH democracy. Hence, when viewed from the perspective of the strength and legitimacy of decision-making, the logic of ethnic electoral units proves itself to be vastly superior to the current way of election of BiH Presidency members that is deduced from a flawed interpretation of BiH constitution and quasi-legalized through the BiH election law currently in force. Such logic, and its positive effects, provides a further support to a view of democracy in divided societies that Lijphart presents as follows: “A third point of broad, if not absolute, agreement is that the successful establishment of democratic government in divided societies requires two key elements: power sharing and group autonomy. Power sharing denotes the participation of representatives of all significant communal groups in political decision making, especially at the executive level; group autonomy means that these groups have authority to run their own internal affairs, especially in the areas of education and culture. These two characteristics are the primary attributes of the kind of democratic system that is often referred to as power-sharing democracy or, to use a technical political-science term, ‘consociational democracy’. A host of scholars have analyzed the central role of these two features and are sympathetic to their adoption by divided societies. But agreement extends far beyond the consociational school.”
Democratic representation and ‘bastardization’ of BiH democracy
Agreements and constitutions can be implemented, and can be violated. Violation of an agreement, or a constitution, however, can take a specific shape: it can take place, and be quasi-justified, through unreasonable interpretation of an agreement that is imposed due to some special power-relations within a community. For instance, in BiH democracy a majority of political actors may decide not to oppose the interpretations by the High Representative simply out of a fear from some kind of sanction, despite the fact that a body that passes unjustifiable, but unopposable decisions cannot be reconciled with the principles of democracy. A community marked by the presence of such a body cannot be democracy simply because such a community does not rule itself. 
In BiH we deal exactly with such a kind of community. We deal with a community that is nominally a democracy, but in reality it is a ‘bastardized’ form of democracy, a form in which international community, by putting an unreasonable interpretation on some key democratic procedures, has divorced those procedures from their democratic content and meaning. International community has thus transformed some originally democratic procedures into non-democratic ones that lead to unjust and illegitimate outcomes. It has thus contributed to further destabilization of BiH democracy and deprived the democracy of its key function: to serve as a mechanism of channeling and institutionalizing of social conflict, or of transforming of social conflict into those forms that can be rationally or discursively controlled and thus resolved peacefully and non-violently. The most obvious example of such development can be found in ‘Komšić’ problem, which is a consequence of the international community decision to interpret article V of BiH Constitution in unreasonable and implausible terms, and then to incorporate such an interpretation into the BiH election law. The effects of such interpretation remain with us. Komšić continues to hold the office of BiH Presidency member, and over the last eight years of his mandate the responsible bodies and officials have done absolutely nothing to prevent the ‘Komšić’ problem from recurring.
As already mentioned, Komšić cannot be deemed a democratic representative. Democratic representative is one who, by being elected, gains a special ‘mask’ enabling him or her to figure as a protector of common or public good for a community. Komšić was elected through a flagrant violation of BiH Constitution; hence his very post-holding is an outcome of violation of common good of BiH democracy. In other words, he is simply unable to function in the sense that Hobbes’s sovereign representative functions. Also, he is unable to carry the a priori moral capital that a sovereign representative needs to perform his duties properly. Komšić’s election involves silencing of a voice of a community who the preamble to the Dayton constitution designated as ‘constituent people.’ More importantly, even if Bosniaks do not elect a Croat representative at the next electoral round, this will be of no essential consequence to the political relations or frame because the election law now in force enables and legitimizes such an outcome, a repeated ‘Komšić.’ Hence, the election law sanctions some elections that result in anti-constitutional outcomes and that therefore cannot be deemed or described as democratic.
I have already emphasized that Komšić in BiH actually figures as a quisling. Quislings were in the course of World War II imposed by Nazis who were backed by a massive military force. The force that international community applied to impose a non-democratic option in BiH, i.e. to impose on a people one representative who is not their representative, is a force of a different, softer kind; it is a force of interpretation sanctioned by a quasi-authority of the High Representative as a quasi-ultimate interpreter of the BiH constitution. The interpretation forms a part of the election law which has quasi-legitimized the election of Komšić, but has also declared the right of a constituent people nil and void for all practical purposes.
Imagine that Hitler imposed on Norwegians the law which stipulated that Vidkun Quisling would act as their representative, except in those situations when another people, for instance Germans, decided to permit Norvegians to elect their own, legitimate representative. This is a condition we face in today’s Bosnia-Herzegovina. The ‘state’ is not a democracy, and as such it is not viable. Sooner or later all ‘bastardized’ democracies are doomed to disintegrate and disappear; the only interesting question concerning the current form of BiH ‘democracy’ may be put in the following way: will the road towards its disintegration be paved by the means of military coercion, hence by a war, or by a radical change of election rules in light of the logic of ethnic electoral units? It is, of course, possible that the Croat people in the long run succumb to the position of a de-constituted people, but to such a condition nobody should refer as an indication of a peaceful and stable BiH or of BiH as a multi-ethnic democracy. Besides, I firmly believe that at least one of the two remaining constituent peoples is likely to take such a condition as a warning and a clear sign of a threat coming from the current frame of BiH ‘state.’
Dražen Pehar has a PhD in politics and international relations from Keele University (SPIRE 2006), holds an assistant professorship (BiH) in the philosophy of law and in politics with sociology. Dražen is a DiploFoundation Associate, and previously served as Chief of Staff to the BiH Federation President (1996) and as a media analyst to the OHR (1999/2000).
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25) See, for example, Neumann F. (1974), ‘Strah i politika,’ (‘Angst und Politik’) in: Neumann, Demokratska i autoritarna država (Demokratischer und autoritärer Staat), Zagreb: Naprijed, pp. 227-255, a Croatian translation by Nadežda Puhovski and Žarko Pukovski.
26) Lijphart A. (2006), ‘The case for power sharing,’ in: L. Diamond, M.F. Plattner (eds.), Electoral Systems and Democracy, Baltimore: The Johns Hopkins University Press, pp. 42-55, p. 43
27) See Pehar D. (2012), ‘Bosna i Hercegovina kao veleposlanstvo Visokog Predstavnika – republikanska kritika’, Političke analize (Zagreb) 10, pp. 3-9 (an English version accessible from http://www.academia.edu/935704/BosniaHerzegovina_as_the_Embassy_of_the_High_Representative_A_Republican_Critique)