January 03, 2014
TheSrpskaTimes

Sejdić and Finci are the two most famous last names in the recent history of B&H. The former one Romany, the latter one Jewish, in B&H Constitution more familiar as ‘the others’ – they did not manage to secure the positions in B&H authorities but nevertheless ensured themselves full four years on top of B&H most topical issues. And on top of Europe’s most topical issues as far as B&H is concerned. The implementation of the European Court for Human Rights in the “SF Case” is exactly that – Science Fiction. Still, bearing in mind the fact that the decision will have to be implemented sooner or later, and the B&H Constitution ‘unpacked’, two ‘others ‘could start an avalanche that will fall down on the very essence of B&H, not only on a few Articles of its Constitution and the Election Law.

By: Andrea Vuković

Leaders of B&H political parties have met three times only in the past three months with the European officials in order to find a solution for the implementation of the decision of the European Court for Human Rights in Case „Sejdić and Finci vs. B&H“. Despite the messages on the ‘progress made’ launched from the European metropolises, B&H did not move one step further toward abolishing discriminatory provisions in its Constitution. Serbian parties do not agree to the amendments surpassing the framework of changes, except for scarce wording in the Articles of the Constitution relating to the election of a member of Presidency and delegates in the House of People. Croatian and Bosniak parties would like to see a more profound modification of the Constitution. These positions, taken on 23 December 2009, have been set in stone ever since. And since B&H is entering the election year and despite (groundless) prognoses that the election will not take place, political parties have already started a pre-election campaign for 5 October 2014 Elections. It is highly unlikely that giving up on their positions on constitutional changes could bring any of B&H parties an election result that they desire, and at a time when, except stubbornness and declarative protection of national interest, no one can really offer any other reality, none of B&H parties will decide to confuse its election body over some ‘alleged’ human rights. And the safe voters are the only thing that matters. All the others are after all – second class citizens.

jednakost (494x640)

Sejdic and Finci are actually not what the ‘Sejdic i Finci’ Case is all about

And they really are. It is less important that only few people in B&H were concerned because of the statements that this is a country of two entities and three peoples, and that equal human rights relate only to some, while the ‘others’ are marginalized. What matters is that the European Court for Human Rights confirmed that being a human in the world surpasses the concept of being a member of some (ethnic) group. The focus on two ‘others’ has blurred the rest of the picture – Sejdic and Finci are only two persons that came to the idea to fight B&H in courts, and the election of the members of the Presidency and the delegates in the House of Peoples is only a small part of a broken mechanism keeping B&H alive.

The overwhelming question in the past four years in B&H – the implementation of the Decision of the European Court for Human Rights in Case ‘Sejdic and Finci Vs. B&H’ – is not only about a need for the members of Parliament (and the delegates) in B&H Parliamentary Assembly to adopt constitutional amendments relating to the election of members of B&H Presidency and of the delegates in the House of Peoples of B&H Parliament. It is about the Court in Strasbourg deciding that B&H Constitution violates basic human rights.

Article 1 of Protocol 12 of the European Convention for Protection of Human Rights and Fundamental Freedoms, violated by an impossibility of Mr Dervo Sejdic and Mr Jakub Finci to run for delegates, i.e. members of the Presidency, boils down to the following: ‘The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’

It is true that the decision in the case ‘Sejdic and Finci Vs. B&H’ in formal and legal respects mandates exclusive change of the way of election of a member of Presidency and of a delegate in the House of Peoples. However, the implementation of the decision in Strasbourg cannot be a cosmetic change, because the Constitution will have to see ’ a beauty expert’ each time anyone who is not a Serb, Croat or Bosniak is not able to run for or be nominated to a position. Sejdic and Finci (and all other others) may even tomorrow ask for any other position filled in in B&H according to the national, constitutive principle. The Decision of the Court in Strasbourg essentially relates to the constituency concept, which is observed at all levels of the authority and in almost all managerial positions in public funds and enterprises. It is not that we are dealing here only with a part of B&H Constitution that governs the manner of election of a member of Presidency and the delegate in the House of Peoples. We are dealing with the foundations of the state of Bosnia and Herzegovina, with the concept and the principle of constituency of peoples according to which all three ethnic groups (peoples) have a priority (of any kind) over – the others.

cedh_40451_26_744_2011-03-17 (640x426)

Deconstituting constituency

Constituency of peoples referred to in Annex IV of General Framework Agreement for Peace in B&H is stated in three places: in the preamble, in the section relating to appointing of the deputy ministry in B&H Council of Ministers and in the statement of the Federation of B&H on approving the Constitution.

‘Recalling the Basic Principles agreed in Geneva on September 8, 1995, and in New York on September 26, 1995, Bosniaks, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina …’ is stated in the Preamble.

Constituency of peoples in the normative part of the Constitution is not established as a legal principle. The term constituency in the text of the Constitution itself appears only in one place and relates to an obligation for the Chair of the Council of Ministers to nominate ‘Deputy Ministers (who shall not be of the same constitutive peoples as their Ministers)’. Consequently, Mr Jakub Finci and Mr Dervo Sejdic could not even be Deputy Ministers in the Council of Ministers.

Despite the fact that the concept of constituency has not been elaborated on, B&H Constitution deals with the essence of the constituency concept. Articles of B&H Constitution that have already failed the test of the European Court for Human Rights set forth that ‘the Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniak and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska’, and that ‘the House of Peoples shall comprise 15 Delegates, two-thirds from the Federation (including five Croats and five Bosniaks) and one-third from the Republika Srpska (five Serbs).’ The disputed Article IV that relates to the House of Representatives continues and states that ‘each chamber shall … select from its members one Serb, one Bosniak, and one Croat to serve as its Chair and Deputy Chairs.’ Therefore, another thing that Mr Dervo Sejdic and Mr Jakub Finci can forget about is chairing the Parliament.

This is not where it all ends, though. According to the Decision of the B&H Constitutional Court of 1 July 2000, the Articles of the Republika Srpska and Federation Constitution that had been determined by the Court not to be in accordance with B&H Constitution and to preclude the application of the concept of constituency of the Serbs, Croats and Bosniaks throughout B&H territory, were invalidated. So, a part of the preamble which referred to the right of the Serbian people to self-determination, respect of their fight for freedom and state independence and willingness and determination in terms of connecting their state with other states of the Serbs, was erased from the Republika Srpska Constitution. The destiny of Article 1 that set forth that the Republika Srpska was a state of Serbs and of all its citizens respectively was the same. The Federation Constitution had to be amended in its first Article that laid down that the Bosniaks and the Croats were the constitutive peoples in the Federation of B&H.

B&H Constitution Court in its Constituent Peoples’ Decision admits that “there is neither a definition of the term constituent peoples under the B&H Constitution nor that the Preamble’s last sentence expressis verbis includes the phrase on the entire territory”. Still, the Decision continues and states that: ‘However vague the language of the Preamble of the Constitution of B&H may be because of this lack of a definition of the status of Bosniaks, Croats, and Serbs as constituent peoples, it clearly designates all of them as constituent peoples, i. e. as peoples.’

The story on constituency only begins here. A little less than two years after the Decision of the Constitutional Court, with a very dedicated mediation of the Office of the High Representative in B&H and two ambassadors, political parties’ leaders signed (some of them with remarks) the Agreement on Implementation of the Constituent Peoples’ Decision of the B&H Constitutional Court. What followed were two peoples’ houses – the Council of Peoples in the Republika Srpska and the House of Peoples in the Federation, quotas for all parliamentary houses in Srpska and Federation, the institution of vital national interest and procedures for its protection, quotas for key political functions, quotas for the Government, quotas for all other public authority bodies. And so the absolute application of the constituency principle started in B&H.

However, somewhere along the quotas all ‘others’ have been left out. So, for example, both the Republika Srpska and the Federation Constitutions rule out a possibility for someone who is not a Serb, a Croat or a Bosniak to be the president of Srpska or the Federation, because both Constitutions lay down that the president ‘has two vice-presidents from different constituent peoples’, which means that the president may not have a vice-president like Mr Dervo Sejdic and Mr Jakob Finci, two non-Serbs, non-Bosniaks, non-Croats – others.

cedh_39553_13_381_2009-07-02 (640x334)

The Court in Strasbourg has already decided that Bosnia and Herzegovina was ’guilty’ on the grounds of discrimination of non-Bosniaks, non-Serbs and non-Croats compared to the Bosniaks, Serbs and Croats – and not because B&H did not allow Jakub Finci and Dervo Sejdic to be members of the Presidency, that is, delegates in the House of Peoples of B&H. So, for the first time, an official message was sent from Strasbourg to B&H that the principles on which it exists were questionable from the point of view of the protection of human rights. And so the concept of the constituency of peoples, on which B&H both rests and survives jeopardizes the state of B&H itself.

The ‘Sejdic and Finci vs. B&H’ ruling cannot be essentially changed only by amending the manner of the election of delegates in the House of Peoples or the members of the Presidency. On the other hand, a solution according to which the Constitution would be changed beyond recognition, that is, in which the majority people in the area of whole B&H would be dominant with respect to other peoples, is not a realistic solution either. Thus, the decision of the court in Strasbourg exactly brings into question the constitution and legal set-up of B&H laid down in the Dayton Agreement, because B&H violates human rights due to the concept of constituency of peoples. And without constituency of peoples, there is no B&H as defined in Dayton.

There are attempts to promote the sustainability of constituency concept by a number of encouraging messages coming from different domestic and foreign interest circles – ranging from those according to which this is the only solution for B&H to those that something may have been mistranslated. Whether the translation was correct or not, we will perhaps never know, because there is nothing to be translated any more – B&H does not have the original text of the Dayton Agreement or the information about its whereabouts. One thing is certain though, and this is that the constituency concept is mainly very well implemented in B&H – equal representation of constituent peoples must be provided everywhere, from given political offices to focus groups for market research.

And perhaps some of the ‘others’ may not have a chance to complain to the Court in Strasbourg for not being a part of a focus group for investigating the citizens’ opinions on the quality of domestic products; however a list of closed doors due to which they can complain is still a quite long one. Non-eviction of B&H from the Council of Europe and recognition of 2010 Elections may be a proof that some rules have changed. Still, it is not realistic to expect that the international community will change international laws because B&H cannot realize and recognize that all people are equal.

Constituency of peoples is a concept that disrupts the basic human rights. If the concept of constituency of peoples were abolished, B&H could not even exist, because of the fact that, both according to the Dayton Agreement and under the political reality, B&H is only possible as a complex state of two entities and three (constituent) peoples.