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Bosnia and Herzegovina – When the Constitution, Laws, and Political Participation of Minorities Clash

The following is a guest post by Mirela Savic-Fleming, Special Assistant to the Law Librarian of Congress.

Several days ago, in the middle of a conversation about our everyday lives and the upcoming midterm elections, a friend of mine looked at me, and asked out of the blue, “Do you know that there is a country that once had three presidents in one day?”

Well, I did not know that, and she was more than happy to tell me the answer – Mexico. On February 18/19, 1913, Mexico started the day with Francisco Madero as the president. After a military coup and his assassination, a lawyer named Pedro Lascuráin briefly took over; he is reputed to be the president with the shortest term of office ever– between 15 minutes and an hour. He retired from politics afterwards and went back to the law. In less than 24 hours, Mexico got its third and final president on that day– Victoriano Huerta. (When I went home, I spent a couple of hours reading about all the tragic events leading to this unusual situation.)

My friend’s question also prompted a follow-up question from me: Did she know that there is a country in the world with three presidents serving concurrently every day, for more than twenty-two years? She did not.

Welcome to Bosnia and Herzegovina, a country with three presidents representing three main ethnic groups, with the same rights and same competences, as they collectively serve as head of state, one chairman and ten ministers in the Council of Ministers, and 57 legislators at the national level.

The governmental structure breaks down further into two entities:

  • Republika Srpska – with one president, two vice presidents, one prime-minister, 16 ministers, and 83 lawmakers at the entity level; and
  • Federation of Bosnia and Herzegovina – with one president, two vice presidents, one prime minister and 16 ministers, as well as around 800 other elected or appointed officials, including ten additional cantonal prime ministers, for all levels of the government in this entity.

To add it all up, that makes 5 presidents, 13 prime ministers, 42 ministers, and a cast of hundreds more at all levels.

A Complicated Institutional Set Up

Bosnia and Herzegovina is home to what is one of the world’s most complicated governmental system. Any attempt of explanation of this unique constitutional and institutional setup needs to start with the Dayton Peace Accords. In 1995, this document stopped the war in the Balkans, and Bosnia and Herzegovina still uses the Annex 4 as its constitution.

The Dayton Agreement created and developed the institutional guarantees for equal status of all ethnic groups, stopped a brutal war, and started the process of the reconstruction of the country. The European Commission in its Bosnia and Herzegovina 2018 Report stated that the country’s Constitution established a very complex institutional architecture that remains inefficient and which is subject to different interpretations. The main issue is that it created the institutional guarantees for equal status of all ethnic groups, but indirectly, in a constitutional and legal sense, prioritized the rights and the equality of the groups over the rights of individuals.

Bosnia and Herzegovina map. CIA World Factbook.

Dayton established a new internal order in the country by dividing it into two entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. The Federation of Bosnia and Herzegovina was further split into ten cantons. The contested city of BrĨko was given a special district status. The Republika Srpska is an entity with an ethnic Serb majority, whereas the Federation has a Bosniak–Croat mixed population (and overwhelming Bosniak overall majority). The central state institutions are based on a power-sharing model, in which each of the above mentioned ethnic groups, also known as the “constituent peoples,” has its representatives and a veto right.

The Electoral System and the Sejdic-Finci and Zornic Cases

The electoral system in Bosnia and Herzegovina (BiH) is based on a strict division into Bosniak, Croats, and Serbs, who are defined as the nation’s ‘Constituent Peoples’. This system excludes all other citizens (known as ‘Others’)—fourteen national minorities who have lived in the country for centuries—from standing for election to either the three-member presidency or the House of Peoples of the Parliamentary Assembly.

Dervo Sejdic and Jakob Finci are citizens of BiH; Sejdic is Roma and Finci is Jewish. They wanted to stand for election to the Presidency and the House of Peoples of the Parliamentary Assembly; however, the Central Election Commission informed them, in writing, that they were ineligible because of their ethnic origins. They challenged the decision in the domestic courts. The Constitutional Court of BiH delivered two decisions in 2006 stating that it had no competence to decide whether any Constitutional provisions or laws under them conformed with the European Convention on Human Rights. The case went to the European Court of Human Rights in 2006, and in 2009, got referred to the ECtHR’s Grand Chamber. That same year, the Grand Chamber found BiH to be in breach of Protocol 12 of the European Convention on Human Rights, which provides for the right to equal treatment and non-discrimination, in failing to allow its citizens who are not ‘Constituent Peoples’ to stand for election. In 2009, the European Court of Human Rights in its Sejdic-Finci ruling held that all citizens must be able to stand for election to BiH state-level offices.

In 2014, in a related case, the ECtHR ruled in favor of Ms. Azra Zornic, another BiH citizen who was prohibited to stand for high office. The reason for the prohibition was that she refused to declare affiliation with any particular ethnic group. The Court reaffirmed that it is unacceptable to have a political system granting special rights to particular ethnic groups and ruled that the BiH Constitution and electoral laws violate fundamental human rights and must be changed without any further delay.

The implementation of these rulings requires a constitutional amendment and would be considered a major step toward EU accession; BiH has been treated as a potential candidate country for accession since 2003. The world will see what the future will bring.

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