The latest general elections in Bosnia and Herzegovina, held on 3 October 2010, exemplify just how troubling the ethno-democratic Constitution of the country is. This is particularly visible in the election of the members of the Presidency of Bosnia and Herzegovina.
The Constitution of B&H provides (in Article V) that the Presidency will have three members, where a Serb member is elected from the “Republic of Srpska” entity, while Bosniak (Bosnian Muslims) and Croat members are elected from the territory of the “Federation of Bosnia and Herzegovina” entity. Thus, the members of the Presidency are elected by entire populations of those entities and not just their specific ethnic groups (although, because of “ethnic cleansing” this was in reality always the case in Republic of Srpska). One of the problems with this provision, mostly of principle then practical nature, is that it is discriminatory, in the sense that someone not identifying with the three “constituent peoples” may not stand for the election to the Presidency of B&H. This question was dealt with by the European Court of Human Rights in Sejdić and Finci v. Bosnia and Herzegovina case of last year, where the Court found in the favour of the applicants – the decision has still not led to constitutional reforms in that regard.
The more practical problem with the provision is the fact that it enables the specific majorization of Bosnian Croats in the Federation of B&H entity, since Bosniaks, because of their sheer demographic majority can elect both the Bosniak and Croat member of the Presidency (this could also be the case if all the Croat parties had only one candidate). This has occurred two times already, the including these elections. Both times Željko Komšić, an ethnic Croat, the candidate of a left-leaning multiethnic Socialist Democratic Party, was elected almost entirely by Bosniaks, while Croats overwhelmingly voted for two candidates of the Croat nationalist parties. Komšić, who speaks Bosnian (rather than Croatian), and who served in a mostly Bosniak army during the war, identifies himself mostly as a candidate of the “citizens” of Bosnia and Herzegovina (although citizens, according to the Constitution, are a either a separate minority or part of “Others”). Indeed, the Constitution does not expressly say that the Croat member of the Presidency represents the Croats (and the same goes for other members), nevertheless the systematic analysis of the Constitution inevitably leads to the conclusion that its nature is ethno-democratic, rather than orientated to an abstract citizen. The issue is that of legitimacy, rather than legality.
The Constitution has always been an exercise in frustration for (Bosnian) Croats, since they undoubtedly have the weakest position of the three constituent peoples. Thus, it does not completely surprise that the leading Croat nationalist party (HDZ) had made an agreement with the leading Serb nationalist party (SNSD) on the creation of the separate federal unit within (Federation of) Bosnia and Herzegovina. Croats have also indicated the possibility of early elections in two years if the issue of Presidency is not solved through constitutional amendments. None of that, of course, can be done without Bosniaks (among which the “consociation” is a taboo word), and previous attempt at para-constitutional internal secession by Croats proved unsuccessful and has been sanctioned by the High Representative of International Community. Although not subject of this post, it suffices to say that Croats either have no means of judicial resolution of these issues or have (unsuccessfully) exhausted the same.
Calls for external secession (Bosnian Serbs), for internal secession (Bosnian Croats), further centralisation (Bosniaks) and de-ethnicization (“Others”) of Bosnia and Herzegovina show the limits of the constitutional attempts to accommodate all the different interests in a multiethnic state. It remains to be seen how destabilising these calls will be, although at this point long-awaited constitutional reforms seem inevitable. The modalities of such reforms are, however, highly contested.
–Nedim Kulenović, Faculty of Law, University of Sarajevo