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How to break Bosnia's constitutional deadlock

By Bruce Hitchner and Donald Hays  -  17.01.2013 / 04:05 CET
An agreement reached in 2006 indicates how Bosnia's parties could satisfy the demands of the EU and the European Court of Human Rights

Bosnia enters 2013 much as it entered 2012 – needing to reform its constitution and to keep to an EU roadmap. Officially, the commitment is there. The leaders of Bosnia's six major parties reiterated their promises to both reform and the roadmap on 20 November, 17 years to the day after the initialling of the Dayton Agreement that ended the war.

But progress has stalled on the main priority, which is to change the constitution to comply with a ruling that the European Court for Human Rights (ECHR) made in 2009.

The Sejdic? and Finci ruling says that Bosnia must find a way to ensure that all its citizens, whatever their ethnic identification, be allowed to stand for the state-level presidency. At present, the presidency is restricted to the country's three ‘constituent peoples': the Bosniaks, Serbs, and Croats. Bosnia is divided territorially into two entities, the Federation of Bosnia-Herzegovina and the Republika Srpska. Under the Dayton constitution, voters in the Federation directly elect two members of the presidency, one of whom must be Bosniak, the other one Croat. Voters in the Republika Srpska directly elect the other member, a Serb.

The most democratic option would be for candidates to be elected directly in state-wide elections with no consideration given to ethnicity. But Serbs and especially Croats, both of whom are minority groups, fear that a direct ballot could result in them losing their seat in the presidency.

A second possibility is to create a fourth position on the presidency, with that member elected by voters from Bosnia's other national minorities. This, though, would create the possibility of voting gridlock within the presidency.

Is there a route out of this impasse?

We believe there is and it can be found in the debate that led, in 2006, to the so-called ‘April package' of constitutional reforms (reforms that we helped Bosnian parties to formulate).

The parties agreed that it would be unacceptable to replace the three-member presidency with a single president. They further agreed that the three-member presidency was the only state-level institution in which all three constituent peoples were truly equal.

But they also decided to alternate membership of the three-member presidency, to create the rotating positions of president and two vice-presidents, and to leave it to state parliament to nominate and elect the presidency's members. These agreements were enshrined in the ‘April package', which the state parliament failed to ratify.

Hence, as early as 2005, all major parties had reached a consensus that it was constitutionally acceptable to elect the presidency indirectly, through parliament.

The rotating-presidency arrangement appeared again in the constitutional package introduced in the 2009 Butmir process, but with the added provision that those “who do not belong to a constituent people” could “join a people's caucus” in order to vote for the presidency in the state parliament's upper chamber.

This would not guarantee a seat in the presidency for a member of another national minority – but the ECHR does not require a guarantee. What an indirect election through parliament would do is to meet the EU requirement for all citizens to have an equal franchise in the election of the presidency. As required by the ECHR, it would also open the door for any individual, regardless of his or her ethnic identification, to stand for the presidency, albeit only as a representative of the Bosniak (or Serb or Croat) caucus in parliament. While not ideal, this would be, for the time being, the most efficient and least expensive way to bring Bosnia into compliance with the ECHR ruling.

Bosnia's parties may be unwilling to use the Butmir package as the basis of talks, but they should return to the two elements most pertinent to the Sejdic?c and Finci ruling – indirect elections and the provision for other minorities. The potential for agreement remains: all three sides still say that they are open to the possibility of the presidency being indirectly elected.

The leaders of Bosnia's major parties should recognise that a majority of them had reached agreement on this important constitutional reform more than seven years ago. Why delay on this any longer?

Bruce Hitchner is professor and chairman of the Dayton Peace Accords Project at Tufts University in the US. Donald Hays is a former US ambassador and former senior deputy high representative of the international community in Bosnia.

© 2014 European Voice. All rights reserved.
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