A new constitutional court ruling in Bosnia and Herzegovina about election laws could prove difficult to implement – but, if it is not implemented, could obstruct the formation of a new government in 2018, experts said.

The ruling has complicated the already vexed issue of elections reform while boosting demands for negotiations over the so-called “Croat question”, including calls for the creation of a third, Croat-dominated entity, alongside the existing two.

The decision of the Constitutional Court last week calls for changes in the law on how the upper house of the Federation entity parliament is elected.

It was issued in response to a complaint by Dr Bozo Ljubic, president of the General Council of the Croatian National Congress of Bosnia and Herzegovina.

The ruling found that a law in the Federation entity’s constitution, which obliges the 10 constituent cantons to put forward at least one delegate to the House of Peoples from each of the three main ethnic groups [Bosniaks, Serbs and Croats] – even if there are only a handful of that ethnic group living in the canton – was inconsistent with the principle of equality enshrined in the state-level constitution.

It rule that the entity’s constitution and the country’s election law must be “harmonised” within six months.

At present, under the Federation entity’s constitution, the House of Peoples is made up of 58 delegates, 17 Bosniaks [Muslims] group, 17 Croats, 17 Serbs, and seven from “other” ethnicities.

Each canton must put forward delegates based on a complex calculation to reflect the proportions of the three main ethnic groups living there; but it must also send a minimum of one delegate from each ethnic group.

Ljubic argued that this violated the principle of the equality enshrined in the Dayton Agreement, the treaty that ended the Bosnian war of 1992 to 1995 and serves as the basis of the country’s constitution.

Ljubic told BIRN in a written statement that Croats had suffered from this violation, since the insistence on appointing Croat delegates in Bosniak-majority cantons and vice-versa had distorted Croats’ rights to legitimate representation.

“Counties with a mainly Bosniak population have always been able to choose at least two-thirds of the Bosniak delegates, at least two-thirds of the Serb delegates, three-quarters of delegates from the ‘Others’ group and at least one-third of the Croatian delegates,” he wrote.

He argued that this had undermined Croat influence when members of the Federation’s House of Peoples elect delegates to the state-level parliament, and choose the president and vice-presidents of the Federation.

Since the Constitutional Court has not published the complete ruling, it is not yet known how much of the law must be changed or how it could be implemented.

Some lawyers and analysts question how the requirement for one delegate from each ethnic group can be scrapped without causing other problems.

Nedim Hogic, a member of Bosnia’s Law Institute, said the ruling potentially conflicts with the Sejdic-Finci judgment, which said minorities must be permitted to be represented in the state-level House of Peoples.

“I don’t see how we will get out of this mess if we try to implement this,” he said, adding that he was keen to see the whole ruling when it is published.

“If we act in order to implement this judgment, technically what you could have is a Serb or a Bosniak living in the [mainly Croat] West Herzegovina Canton stating that he or she is not allowed to become a member of the House of Peoples of the Federation,” he said.

Ljubic told BIRN that he expected opposition to the ruling from Bosniak politicians.

Given that other rulings by the Constitutional Court as well as the European Court of Human Rights have not been implemented, he wrote: “I'm afraid even now things will not go without obstruction.”

If the ruling is not implemented, said Hogic, “the Constitutional Court should technically report ... that its judgment has not been implemented, and the office of the prosecutor should launch an investigation”, but this was unlikely to happen.

Hogic said that this ruling would more likely be used by Croat politicians to push for a solution to the so-called “Croat question”, involving greater Croat representation in Bosnian politics, and even a third entity.

Adnan Huskic, president of the Sarajevo-based Centre for Election Studies, said the quota system had generally caused “a conflictual atmosphere” rather than helping anybody feel properly represented, and that failure to implement the ruling could cause rows that would hamper the formation of a government in 2018.

Balkan expert Florian Bieber, director of the Centre for Southeast European Studies at the University of Graz said: “The Constitutional Court could declare the election of the next House of Peoples void if there is no change – but that might be too radical a step.”

Bieber agreed that the decision would probably be further grist to the mill in the Croatian representation question since, "after all, HDZ has been arguing for a Croat electoral unit to ensure against being marginalized”.
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