TransConflict is pleased to present the second-part of a three-part paper analysing ethnic electoral units in Bosnia and Herzegovina, produced by the Institute for Social and Political Research, a member of the Global Coalition for Conflict Transformation.
By Dražen Pehar
Željko Komšić, a Croat from Sarajevo, and a former leading member of Social Democratic Party of BiH, was elected twice as a member of the Bosnia and Herzegovina (BiH) Presidency, in 2006 and 2010. He was elected to the position as a Croat. His election was in accordance with the Election Law currently in force, according to which a candidate needs to declare officially his or her ethnic identity as a part of his candidacy, in this case as a Croat, following which he, together with a Bosniak candidate for BiH Presidency, is elected on the territory of the BiH Federation by a simple majority vote. What is the key problem with election of Željko Komšić as a BiH Presidency member from within the Croat population?
According to the Election Law now in force, election of him is fully legal and legitimate. However, is it constitutional? Is it in accordance with the Dayton Constitution for BiH, i.e. Annex 4 of the General Framework for peace in BiH? One does not need an extremely rich capacity of legal-political argumentation to be able to demonstrate that the election of Komšić is in fact unconstitutional in a very precise sense: the opening of the door to election of Komšić, as a Croat candidate for BiH Presidency, by a Bosniak majority vote is an effect of unreasonable interpretation of the relevant provision of the Dayton Constitution; hence the election law itself is a consequence of unreasonable interpretation of the Dayton Constitution, and thus unconstitutional in this respect too. Namely, Komšić was obviously elected predominantly by a Bosniac vote in the BiH Federation as a Croat member of the BiH Presidency. What is wrong and unconstitutional with such a practice?
First, let us see what the Dayton Constitution stipulates about the BiH Presidency. Article V of the constitution reads that the Presidency will be composed of three members, Croat, Serb, and Bosniak, elected by the following method: Croat and Bosniak by a direct vote from the territory of the BiH Federation, and a Serb by a direct vote from the territory of Republika Srpska. It needs to be emphasized here that the provision describes the Presidency at its successful formation. It does not give any detail about how to arrive at the composition; it sets the condition that the vote should come from different entities, depending on the ethnic marking of a seat, but it does not explicitly address the issue of possible limitations on the candidates who enter the electoral run. It is focused on the end result of the process. However, the election law now in force has turned this provision into something else – it has read it as a provision that places some limits on the identity of the candidate deciding to run for the post. As the election law put it, “Bosniac and Croat candidate winning a majority vote among the candidates from within the same constituent people will be elected.” Now, is this provision necessary? And, does it follow from article V of the Dayton Constitution? Secondly, and more importantly, does this provision provide the only possible interpretation of article V? Even more importantly, if it does not, is it possible to demonstrate superiority of such interpretation over alternative ones?
I will here, in a few simple steps, explain why such interpretation is actually less reasonable than the interpretation I propose here, hence, why the election law now in force is unconstitutional in such a sense. It follows immediately from such premises that the election of Željko Komšić, by a Bosniak majority vote, to the position of a Croat BiH Presidency member is an unconstitutional motion.
First of all, it is important to point out that, according to the election law, the issue of ethnic identity, i.e. of the connection between the constituent people membership of election candidate, on the one hand, and the constituent peoples themselves, on the other, is simply removed from the agenda. It is raised only once – at the moment of declaration of ethnic membership by the candidates themselves. Once a candidate declared him- or herself as a candidate-Croat, or a candidate-Bosniak, additional issues concerning constituent peoples are not raised. It is a bizarre consequence primarily because the article V reference to Bosniak, Serb, and Croat, as the BiH Presidency members is not an accident. It is a strongly motivated provision that reads as it reads due to some critically important principles.
An accurate and reasonable interpretation of all constitutions, including the Dayton one, is marked by two facts: first, it is able to explain motivation of a larger number of important constitutional provisions than is the case with alternative/competing interpretations; secondly, such an interpretation can be shown to be more just/ethical and more useful than alternative or competing interpretations. For a start, one should notice that if we decide to reduce the issue of ethnic identity to the issue of ethnic membership declaration by individual candidates, as stipulated by the election law, we shall effectively divorce article V of the Dayton Constitution from the essential part of the preamble to the Constitution, which reads that “Croats, Bosniaks, and Serbs, together with Others, are constituent peoples of Bosnia-Herzegovina.” In other words, individual candidacy of Željko Komšić, who individually declared to be a Croat candidate, is in no way intrinsically tied to the constituent peoples, Bosniaks, Serbs, and Croats, of Bosnia-Herzegovina. Candidacy as such, including the limitations on it in the sense of the necessity of ethnic membership declaration by an individual candidate, is inherently unrelated to the fact of co-constitutionality of the peoples of BiH. Hence, in this part the election law now in force simply does not relate to the preamble to the Dayton Constitution. This is strange because every international lawyer who has some experience with the matters of interpretation will confirm that preamble carries a special weight for the purpose of interpretation simply due to the fact that it is exactly in preamble that one normally finds a definition of foundational principles and purposes of an agreement. Preambles are a distinctive and highly important part of the context within which we interpret the terms of an agreement or a constitution.
In fact, once we couple the BiH Presidency provision with the preamble to the Dayton Constitution, we will necessarily arrive at the following explanation/interpretation: theprovision on the BiH Presidency composition is an effect of a foundational principle laid in the preamble to the constitution; its aim is to protect equality of the constituent peoples of Bosnia-Herzegovina. If the things were meant otherwise, one could feel free to replace article V with the provision that stipulates as follows: “BiH Presidency will be composed of a Chinese, Russian, and an Englishman.” However, in reality, a Bosniak, Croat, and Serb are referred to simply because Bosniaks, Serbs, and Croats are indeed equally constituent peoples of BiH. Their co-constitutionality and equality in such a sense are reflected in the composition of BiH Presidency. This furthermore implies that the BiH Presidency provision needs to be interpreted as a limitation on the sources of legitimacy, or on the ways of democratic representation. Who is, under article V, represented in BiH Presidency, or what is the Presidency representation of? It is representation of the three constituent peoples through the three Presidency members. Hence article V terms, ‘a Croat,’ ‘a Bosniak’, and ‘a Serb’, in fact mean the following: ‘a Croat representative,’ ‘a Bosniak representative,’ and ‘a Serb representative.’ In other words, BiH Presidency is legitimate only if it adequately reflects equality of the constituent peoples of BiH, which immediately implies the requirement that separate constituent peoples get separate representation in the BiH Presidency. This is the only thing that can ensure constitutional validity of the election of BiH Presidency members; the issue of candidacy is absolutely of no importance. The status of a constituent people cannot be safeguarded by posing the question to election candidate concerning his or her ethnic affiliation. Such a status can be safeguarded only by posing to the constituent peoples the question of who they wish to see as their own representatives.
Željko Komšić was thus elected by an election law that incorporates a flawed interpretation of the provision on the BiH Presidency composition. He was elected by a Bosniak majority vote as a ‘Croat representative,’ which is an absurd consequence of an absurd and unfounded interpretation of the Dayton Constitution. The alternative interpretation proposed here is clearly superior to the one proposed by the election law because it takes into account a larger number of relevant provisions and correlates those provisions that are prima facie, by a sound logic, already semantically connected. Hence interpretation of article V proposed here explains the true reason for formulation of the article; it attributes a rational meaning to the article in a plausible fashion. The interpretation, which today serves as a practical background to actual conduct of elections in BIH, does not do such things, and, in light of such interpretation, one simply cannot recognize a rational motivation, a rational meaning, that motivated original authors of the Dayton Constitution.
I have also emphasized that a plausible and pertinent interpretation is marked by another feature: in contrast to alternatives, it puts a proposal that is both more just/ethical and more useful. Constellation, in which Croats elect their own representative, while Bosniaks elect one of their own choosing, is both more just and more useful than the constellation in which Bosniaks elect both a Croat and a Bosniak representative. The people recognized as a constituent ought to enjoy an equal right of democratic representation. Hence the proposal I put forward is more just than the alternative in the sense that the right of equal representation is upheld and safeguarded, and also more useful in the sense that the alternative, the sad reality of today’s Bosnia-Herzegovina, is likely to cause further destabilization and deterioration of relations, an increase in the will to cease conversing, a loss of trust in democratic institutions, and similar, while my proposal does not suffer from such negative effects.
Now, what is the ultimate outcome of constitutional logic proposed here? Obviously, it is the logic of ‘ethnic electoral units.’ Croats from within the Federation ought to elect their own representative to the BiH Presidency. And, Bosniaks ought to elect one of their own to the Presidency. This means that all the Croats, who are authorized to vote, participate in the process of election of their own BiH Presidency member-representative. Hence, ethnic identity of the voter, as a member of a constituent people, is the only factor that should be taken into account. Such identity is one that determines the size of the Croat electoral unit in the BiH Federation. One must not relate to such units in the way that, for instance, Herzeg-Bosna was formed, or the Federation cantons. Croat electoral unit is fully determined by the ethnic identity of the voter. The same of course applies to Bosniak electoral unit. In other words, electoral units are not territorial compounds, but they expectedly have to be territorially marked simply because peoples live on territories. Most importantly, have in mind that such units are formed ad hoc, for a specific purpose, and mean a single thing: to confirm constitutionality of the peoples in the form of liberty to elect freely their own legitimate representatives.
In an analysis I have already criticized, Bieber and Galičić evince an open animosity towards the idea of ethnic electoral units primarily by showing readiness to disfigure the idea and transform it illogically into the question of territorial demarcation. The latter, however, is simply irreconcilable to the basic rationale of the idea. No external observer, or constitutional theorist, is authorized to draw the map of electoral units. The only relevant authority in this regard is in the peoples themselves and the latest census. It is very clear that Bieber and Galičić covertly introduce into the idea of electoral unit something that does not belong there: for instance, they claim as follows: “Provided that two electoral units were established in the Federation, one with a Croat and another with a Bosniak majority, it should be expected that the elected candidates represent a corresponding majority national group…” Here we see an error right at the start – it does not make sense to speak of an electoral unit with ‘a Croat majority.’ This means that somebody from the outside should determine the boundaries of the unit, which makes no sense. In other words, Bieber/Galičić gives a kind of shape or twist to the idea of ethnic electoral units that makes the idea immediately non-implementable. That is why, for the two authors, ‘a Croat’ from Sarajevo becomes problematic straightaway – they locate him or her (in their mental map) into an electoral unit with Bosniak majority, which is an erroneous and, of course, undemocratic step. The Croat from Sarajevo is the only one who determines which electoral unit is her or his; of course, s/he may decide not to vote, but that is a different issue.
Constitutional logic of ethnic electoral units has another major impact. It does not involve the limitation on ethnic affiliation that should be placed on candidates. In other words, following the Croat or Bosniak vote, the candidates elected will figure as Croat and Bosniak representative in BiH Presidency regardless of ethnic affiliation of the candidates. Hence, relevant provisions of the BiH Constitution do not prevent a member of any ethnic group from running for the post of a representative of a constituent people in the presidency; electoral unit is one that decides on the matter. This means that, according to a reasonable interpretation of the relevant provisions of the Dayton Constitution, Sejdić, for instance, as a member of Roma minority, already has the right to run for the post of the Croat, and Bosniak, representative to BiH Presidency. However, have in mind that the election law currently in force is actually the only obstacle – it forbids Sejdić to run for such posts because it requires that Sejdić declares, prior to the running, his ‘Bosniak’ or ‘Croat’ ethnic identity, which, of course, he cannot do.
This has another major consequence. The BiH Constitution does not discriminate in the sense in which the European Court of Human Rights, in their ‘Sejdic-Finci’ verdict, claims the constitution discriminates. Discrimination that is currently in place is an effect of the election law now in force. Now, as I argued, verbatim article V of the constitution does not address the issue of the ethnic identity of a candidate, and the best semantic construction of the article implies that the peoples themselves are those who should determine which candidate they wish to see as their own representative to the BiH Presidency. There is no solid reason why Sejdić could not believe that he would act as a good representative of Bosniaks at the BiH Presidency, and there is no solid reason why Bosniaks could not believe that Sejdić indeed should act as their own representative to the presidency.
Altogether, this implies that the international community has organized a major constitutional fraud in BiH. Namely, they have been repeating, like a mantra, their point that ‘Sejdic-Finci’ verdict involves a demand that the BiH Constitution be revised or amended. The verdict in fact involves a demand that the election law now in force be declared unconstitutional, but have in mind that the law was imposed by international representatives, Ambasador Barry, OSCE and the OHR; in other words, the foreign representatives have been generating problems and troubles in the BiH, while repeatedly claiming that something is wrong with the country and its peoples. In my opinion, such a strategy of such representatives serves to justify a continued role of international community as a ‘protector’ of BiH, and probably a future owner of its financial and economic resources.
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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14) For a precise empirical analysis, see Vukoja I. (2013), ‘Primjeri ne-konstitutivnosti i ne-jednakopravnosti Hrvata u Federaciji BiH’ (‘The cases of non-constitutionality and inequality of Croats in the BiH Federation’), Status no. 16, pp. 92-106.
15) See the text on the web-site of Central Electoral Commission of BiH: http://www.izbori.ba/Documents/documents/ZAKONI/Sl_gl_BiH_23_01/IZ-Sl_gl_23-01-bos.pdf (accessed on 10 September 2014)
16) http://www.ohr.int/dpa/default.asp?content_id=372 (accessed on 10 September 2014)
17) The terms ‘Bosniak and Croat candidate’ should prompt one to thinking – as a candidate individually announces his or her candidacy, such terms do not make sense; the candidates referred to are in fact those who have declared to be ‘a member of the Bosniak or the Croat people.’
18) These are two traditional canons of interpretation: the first one stipulates that interpretation should explain the meaning
of semantic elements within their context, while the second is emphasized especially in Cicero’s classical study De Inventione; for more detail, see Pehar D. (2006), ‘Moralne dileme, politički sukobi, tumačenja i promjene (Daytonskog) Ustava – stajalište filozofa jezika,’ Status no. 9, pp. 127-140, esp. pp. 134-137 (for an English version, see http://www.academia.edu/1820489/Moral_dilemmas_political_conflicts_and_interpretations_of_the_Dayton_Constitution).
19) The same logic can be applied easily to the House of Peoples of BiH Parliament.
20) Pehar D. (2014), ‘On an analysis by Konrad Adenauer Stiftung that should have remained unpublished,’ (IDPI analysis): http://www.en.idpi.ba/on-an-analysis-by-konrad-adenauer-stiftung-that-should-have-remained-unpublished/ (accessed on 10 September 2014)
21) Bieber F., Galičić D. (2014), ‘Opcije za reformu Predsjedništva BiH,’ (‘Options for a reform of BiH Presidency’) in: Analiza implementacije ustavnog i pravnog okvira na terenu, Sarajevo: Konrad Adenauer Stiftung, Europska Akademija; pp. 53-70, p. 66
22) Bieber, Galičić, ibid.
23) In fact, international representatives have directly supervised the process of drafting of the election law; hence, ‘imposition’ or ‘coercion’ may be insufficiently adequate terms in this context; see Gilbert A. (2008), Foreign Authority and the Politics of Impartiality in Postwar Bosnia-Herzegovina, PhD thesis, the University of Chicago, Department of anthropology, p. 139
24) Nino Raspudić has repeatedly pointed to the fact that nowadays Croats of BiH vote emotionally – they adhere to the ‘strongest’ Croat party in the belief that this could save them from outvoting or the condition in which the will of Bosniak electorate predominantly determines the outcomes that should, but ultimately cannot, be recognized by Croats and Croat representatives too. This, of course, generates a ‘vicious circle’ (The voting for the ‘strongest’ Croat party cannot prevent the possibility of outvoting that is legitimized through the election law currently in force; on the other hand, in given conditions, the Croat vote actually prolongs the agony and reproduces an unfair/unconstitutional constellation.) which can be broken only by ethnic electoral units.