EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
OPINION
ON DIFFERENT PROPOSALS
FOR THE ELECTION OF THE PRESIDENCY
OF BOSNIA AND HERZEGOVINA
Endorsed by the Commission
at its 66th plenary session
(Venice, 17-18 March 2006)
on the basis of comments by
Mr J. HELGESEN (Member, Norway)
Mr G. MALINVERNI (Member, Switzerland)
Mr J.-C. SCHOLSEM (Member, Belgium)
Mr K. TUORI (Member, Finland)
Introduction
1.
By
letter dated 2 March 2006 the Chairman of the Presidency of Bosnia and
Herzegovina, Mr Sulejman Tihić, asked the Venice Commission to provide an Opinion on three
different proposals for the election of the Presidency of this
country. This request was made in the framework of negotiations on
constitutional reform between the main political parties in Bosnia and
Herzegovina. The issue of the election of the Presidency remains to be resolved
in order to reach agreement on a comprehensive reform package.
2.
The
declared intention is to adopt a comprehensive constitutional reform
sufficiently early to allow the forthcoming elections in October 2006 to take
place on the basis of a revised Constitution which inter alia would no
longer contain the discriminatory provisions pointed out in the Commission’s
Opinion on the Constitutional Situation in Bosnia and Herzegovina and the
Powers of the High Representative (CDL-AD(2005)004). It is therefore urgent to
quickly resolve the deadlock on the election of the Presidency and Mr
Tihić asked the Venice
Commission to provide its Opinion as soon as possible.
3.
The preliminary
Opinion, prepared under the responsibility of the rapporteurs, Messrs Helgesen
(Norway), Malinverni (Switzerland), Scholsem (Belgium) and Tuori (Finland), was
therefore sent to the authorities of Bosnia and Herzegovina on 7 March 2006. It
was endorsed by the Commission at its 66th Plenary Session on 17 and
18 March 2006.
General
comments
4.
In its
Opinion on the Constitutional Situation in Bosnia and Herzegovina and the
Powers of the High Representative the Commission concludes that constitutional
reform is indispensable since present arrangements are neither efficient nor
rational and lack sufficient democratic content. While acknowledging that
constitutional reform will have to take place in several stages, it identifies
several issues which should be addressed with particular urgency, including the
provisions on the composition and election of the Presidency.
5.
The
Commission therefore welcomes the fact that a process of constitutional reform
was initiated so quickly following its Opinion and that proposals for a
different way of electing the Presidency are now on the table.
6.
With
respect to the Presidency, the above-mentioned Opinion of the Commission concluded
as follows:
“40. The best solution therefore would be to
concentrate executive power within the Council of Ministers as a collegiate
body in which all constituent peoples are represented. Then a single President
as Head of State should be acceptable. Having regard to the multi-ethnic
character of the country, an indirect election of the President by the
Parliamentary Assembly with a majority ensuring that the President enjoys wide
confidence within all peoples would seem preferable to direct elections. Rules
on rotation providing that a newly elected President may not belong to the same
constituent people as his predecessor may be added.”
7.
None of
the three proposals submitted to the Commission envisages a single President.
All three proposals stick to a collective Presidency of three members. None of
the proposals is therefore ideal from the Commission’s point of view. However,
this does by no means exclude that a new rule on the election of a collective
Presidency could constitute a step forward.
Comments
on Proposal I
8. Proposal
I would consist of maintaining the present rules on the election and
composition of the Presidency, with one Bosniac and one Croat elected from the
territory of the Federation and one Serb elected from the territory of Republika
Srpska. In its above-mentioned Opinion the Commission raised serious concerns
as to the compatibility with Protocol No. 12 to the European Convention of
Human Rights of such a rule, which formally excludes Others as well as Bosniacs
and Croats from Republika Srpska and Serbs from the Federation from being
elected to the Presidency. Maintaining this rule as it stands should therefore
be excluded and Proposal I be rejected.
Comments
on Proposal II
9.
Proposal
II, which is not drafted as text to be included in the Constitution but as a
summary of possible constitutional content, maintains the system of directly
electing two members of the Presidency from the Federation and one from
Republika Srpska, however without mentioning any ethnic criteria for the candidates.
The de jure discrimination pointed out in the Venice Commission Opinion would therefore be
removed and adoption of this proposal would constitute a step forward. The
Proposal also includes a rotation of the President of the Presidency every 16 months.
Within the logic of a collective Presidency, this appears as a rational
solution.
10.
By
contrast, the Proposal lacks clarity as to the pluri-ethnic composition of the
Presidency. The collective Presidency was introduced, and supposedly will now
be maintained, in order to ensure that no single state organ is dominated by a
representative of a single constituent people. As it stands, under the proposal
it would be possible to, for example, elect two Bosniacs from the Federation to
the Presidency. Legally, this drawback could be remedied in the framework of
the Proposal by providing that not more than one member of the Presidency may
belong at the same time to the same constituent people or the group of Others.
It is the understanding of the Commission that the intention is indeed to
include such a provision in the Constitution in case this proposal is adopted.
11.
However,
the problem would result of having to possibly exclude from the Presidency candidates
who have received a higher number of votes. In the Federation it is quite
possible that two Bosniacs would attain the highest number of votes. In this
case, a candidate who obtained more votes would have to be barred from the
Presidency in favour of a candidate who obtained fewer votes. These issues
should be regulated clearly at the level of the Constitution and not be left to
ordinary law.
12.
As a
further drawback, de facto Bosniacs and Croats from the Republika Srpska
and Serbs from the Federation would also continue to have no realistic
possibility to elect a candidate of their preference.
13.
Furthermore,
the election of the Head of State would continue to take place on an Entity
basis while it would be desirable to move it to the State level as part of the
overall approach of strengthening the State.
14.
As a minor
issue, the proposal would also allow members of the Presidency to hold a
leadership position in a political party. This does not seem in line with the
overall aim of constitutional reform of transforming the Presidency from an
executive body into a (collective) Head of State.
15.
To sum
up, Proposal II is a clear improvement with respect to the present
constitutional situation. However, it has a number of drawbacks, including the
risk that candidates with less votes than others are elected and it does not
contribute to the overall aims of the constitutional reform of moving power to
the Council of Ministers and strengthening the State level.
Proposal III
16.
Proposal
III differs more markedly from the present constitutional situation by
introducing a complicated procedure of indirect elections for the Presidency.
As set forth above, the main preference of the Commission is for the indirect
election of a single President with reduced powers. But also in the case of a
collective Presidency, the Commission maintains its preference for indirect
elections.
17.
The
reason is, first of all, that one of the main aims of the constitutional reform
would be to reduce the powers of the Presidency and to concentrate executive
power in the Council of Ministers. This
change will be more difficult to bring about if the Presidency does have the
legitimacy of a direct popular vote.
18.
Moreover,
in an indirect election it is easier to devise mechanisms ensuring the desired pluri-ethnic composition
of the Presidency. It offers more possibilities for inter-ethnic co-operation
and compromise while direct elections for de facto separate ethnic slots
provide an incentive to vote for the person considered as the strongest
advocate of the respective constituent people and not for the candidate best
suited to defend the interests of the country as a whole.
19.
Finally,
the Proposal moves the election to the State parliament. It is indeed desirable
and in line with the overall aim of strengthening the State to have the
election of the Head of State at this level.
20.
From the
point of view of the overall approach, Proposal III therefore seems preferable.
There are nevertheless some drawbacks.
21.
First of
all, the proposal seems complicated with too many steps and possibilities for
stalemate. Nominations can be put forward by members of the House of
Representatives or the House of Peoples, the selection of the candidates takes
place by the three separate ethnic caucuses in the House of Peoples and
thereafter the slate of candidates has to be confirmed both by the three
caucuses in the House of Peoples and by the House of Representatives.
22.
Within
the parameters of the proposal, it would seem preferable to have a simpler
procedure with more focus on the House of Representatives as the body having
direct democratic legitimacy derived from the people as a whole. The
possibility to nominate candidates should be reserved to members of the House
of Representatives, selection among these candidates could take place in the
three separate ethnic caucuses of the House of Peoples to ensure that the
interests of all three constituent peoples are respected and the slate of
candidates would have to be confirmed by the majority of the composition of the
House of Representatives, ensuring that all three members have legitimacy as
representatives of the people of Bosnia and Herzegovina as a whole.
23.
In
addition, it should be clarified how the positions of the President and Vice-
Presidents are to be distributed. As it stands, Proposal III leaves this
important decision implicitly to back-room dealing between the three ethnic
caucuses since a slate identifying President and Vice-Presidents has to be
submitted to the House of Representatives, while no indication is provided on
how this choice has to be made. This seems the worst possible solution and
likely to lead to stalemate. The rotation envisaged by Proposal II seems more
feasible.
24.
There
are also other aspects of Proposal III which are not in accordance with the
preferences of the Venice Commission. In its above-mentioned Opinion,
the Commission argued in favour of abolishing the House of Peoples. Giving it a
strong role in the selection of the Presidency cannot therefore be considered a
positive step. The role of ethnic caucuses makes the election of candidates not
belonging to a constituent people extremely unlikely. This is however not
peculiar to this Proposal but reflects the political situation. The proposal at
least ensures that the representatives of the Others in the House of
Representatives will take part in the vote and that Serbs from the Federation
and Bosniacs and Croats from Republika Srpska are no longer disadvantaged since
their representatives in the State parliament will be able to vote for the
candidates of their choice.
25.
Even in
the framework of a collective Presidency, solutions for indirect elections
could be devised, which would appear preferable. For example, within the House
of Representatives, slates of three candidates not coming from the same
constituent people or the group of Others could be nominated and the vote could
take place between such slates. This would nevertheless be a different proposal
and not an amendment to Proposal III.
26.
To sum
up, Proposal III is also a clear improvement with respect to the present
situation. If it were to be adjusted as suggested in paragraphs 22 and 23, it
would appear suitable as a solution (although not an ideal one) for the first
stage of constitutional reform.
Conclusions
27.
In
conclusion, the Commission strongly welcomes that the political parties in Bosnia
and Herzegovina have found the courage to try adopting a comprehensive
constitutional reform before the forthcoming elections in October 2006. It
acknowledges that a reform adopted at this stage can have an interim character
only, as a step towards the comprehensive reform the country clearly needs.
28.
With
respect to the three proposals submitted to the Commission, adoption of the
first proposal could only be regarded as a failure of constitutional reform on
this issue and should be excluded. By contrast, both Proposal II and Proposal
III deserve, subject to some additions and amendments, to be considered at the
present stage as important steps forward, but by no means as ideal solutions.
29.
Between
Proposal II and Proposal III, the Commission would - though not without
hesitation - give preference to Proposal III, subject to some adjustments as
indicated above. An indirect election in line with the aim of the constitutional reform of reducing the
powers of the Presidency makes it easier to ensure a balanced composition of
the Presidency and thereby corresponds better to the raison d’être of
this - unusual - institution. The Proposal also moves the election to the State
level, in accordance with the overall aim to strengthen the State of Bosnia and
Herzegovina. However, sight should not be lost of the ultimate aim of
constitutional reform in this area: having in future a single President elected
in a manner ensuring that he or she enjoys trust beyond the ethnic group to
which he or she belongs.
A P P E N D I X
Proposal One
Existing Dayton Constitution
Language:
The Presidency of Bosnia and Herzegovina
shall consist of three Members: one Bosniac and one Croat, each directly
elected from the territory of the Federation, and one Serb directly elected
from the territory of the Republika Srpska.
1.
Election
and Term
a.
Members
of the Presidency shall be directly elected in each Entity (with each voter
voting to fill one seat on the Presidency) in accordance with an election law
adopted by the Parliamentary Assembly. The first election, however, shall take
place in accordance with Annex 3 to the General Framework Agreement. Any
vacancy in the Presidency shall be filled from the relevant Entity in
accordance with a law to be adopted by the Parliamentary Assembly.
b.
The term
of the Members of the Presidency elected in the first election shall be two
years; the term of Members subsequently elected shall be four years. Members
shall be eligible to succeed themselves once and shall thereafter be ineligible
for four years.
Proposal Two
Election and the term of office:
a. Members of the Presidency shall be elected
directly in each entity (so that every voter shall vote for the filling of one
seat in the Presidency), in accordance with the Election Law that is enacted by
the Parliamentary Assembly. Two members of the Presidency are elected from the
BiH Federation, and one from the Republika Srpska.
b. The term of office of the Presidency shall be
four years, and the members may be elected for an additional consecutive term.
c. The election of the President, by rotation or
in another manner, shall be defined by the Parliamentary Assembly of BiH
(existing constitutional provision).
d. Before assuming the office, the Presidency
members shall take an official oath in accordance with the law.
e. The Presidency, with a rotation of every 16
months will remain, and provisions stipulating individual competencies of the
President of the Presidency will be introduced, as they were agreed upon in the
hitherto negotiations on constitutional changes. The agreed provision that
members elected to the BiH Presidency cannot hold a leadership position in a
political party will be eliminated from the agreement.
The issue of the rotation of the BiH
Presidency shall be addressed in the second phase of negotiations.
Proposal
Three
Presidency:
1.
Bosnia
and Herzegovina has one President and two Vice-Presidents.
2. The President shall work cooperatively with
the Council of Ministers and the Parliamentary Assembly to ensure the regular
and efficient functioning of the State.
3. The President and Vice-Presidents may not
serve in a position of a political party, or any other appointed or elected
office, while serving as president of Vice-Presidents, in accordance with the
Law on Conflict of Interests.
4. Election of the Members of the Presidency
a. Candidates for the Presidency members may be
nominated by 20% of deputies in the House of Peoples or by 10% of deputies in
the House of Representatives. Candidates shall be directly elected members of
the Parliamentary Assembly. Members may support the nomination of one candidate
only.
b. Based on the nominated proposals, caucuses
of the constituent peoples in the House of Peoples shall select one candidate
each, which shall make up a late of three candidates. The slate shall be
confirmed by majority vote in each caucus of constituent peoples.
c. The slate of three proposed candidates for
President and two Vice-Presidents of BiH shall be forwarded to the House of
Representatives for confirmation.
