EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
JOINT OPINION
ON
AMENDMENTS TO THE ELECTION LAW
OF BOSNIA AND HERZEGOVINA
by the Venice Commission
and
OSCE/ODIHR
adopted by
the Council for Democratic Elections
at its 24th
Meeting
(Venice, 15 March 2008)
and by the Venice Commission
at its 75th
Plenary Session
(Venice, 13-14 June 2008)
on the
basis of comments by
Mr Ángel
SANCHEZ NAVARRO (Substitute Member, Spain)
Mr Hjörtur
TORFASON (Member, Iceland)
Mr Jessie
PILGRIM (Electoral Expert, OSCE/ODIHR)
I. Introduction
1. This joint opinion on the
amendments
to the Election Law of Bosnia and Herzegovina (Election Law) is prepared by the
Organization for Security and Cooperation in Europe’s Office for Democratic
Institutions and Human Rights (OSCE/ODIHR) and the Council of Europe’s European
Commission for Democracy Through Law (Venice Commission).
2. The joint opinion considers only
the amendments to the Election Law and, therefore, must be considered with
previous assessments of the Election Law by the Venice Commission
and the OSCE/ODIHR. Of particular relevance are the Final Report of the
OSCE/ODIHR Election Observation Mission for the 1 October 2006 General
Elections (Warsaw, 6 February 2007), Venice Commission Opinion on Different
Proposals for the Election of the Presidency of Bosnia and Herzegovina
(Strasbourg, 20 March 2006) (CDL-AD(2006)004), OSCE/ODIHR Assessment of the Election
Law for the 5 October 2002 Elections in Bosnia and Herzegovina (Warsaw, 25 July
2002), and Venice Commission Opinion on the Electoral Law of Bosnia and
Herzegovina (Strasbourg, 24 October 2001) (CDL-INF(2001)21). These documents
contain important suggestions on how to improve the Election Law in order to
maintain a legal framework for elections consistent with international
standards.
3. In the obviously difficult
constitutional, institutional and political context of Bosnia and Herzegovina,
the election law has already been subject to quite frequent reforms. For the major part, the current amendments are addressed
towards technical issues, for purposes of clarification and improvement, and
mainly with positive results. They also do address some previous
recommendations of more substantive nature and may be considered as positive to
that extent. However, the amendments do not address certain significant issues previously noted
regarding the national and entity election systems, which are based on ethnicity,
the right to be elected, and transparency in the determination of rights in
electoral dispute proceedings.
4. It must be kept in mind
that the legal setting for Bosnia and Herzegovina is unique. The
constitution is Annex 4 of what is commonly known as the Dayton Peace Agreement. In
addition to being a state constitution, the document is part of a peace accord,
whose annexes qualify as international treaties under the Vienna Convention on the Law of
Treaties. The Election Law (adopted in 2001 and amended on several occasions in
2002, 2004, 2005, and 2006) regulates elections at the state level and
“stipulates the principles governing the elections at all levels of authority”.
Due to the number and nature of the applicable laws, the legal framework for
elections in Bosnia and Herzegovina can be considered as
complex. Thus,
any opinion must be cognizant of the unique legal setting of the country.
5.
The present opinion, which was prepared on the basis of comments by
Messrs A. Sanchez Navarro and H. Torfason, members of the Venice Commission, Jessie
V. Pilgrim, expert for the OSCE/ODIHR, was adopted by the Council for
Democratic Elections at its 24th meeting (Venice, 15 March 2008) and
by the Venice Commission at its 75th plenary session (Venice, 13-14
June 2008).
II. Discussion of amendments
1. General limitations on the right to be elected
6. Article 25(b) of the International Covenant on Civil and
Political Rights (ICCPR), which is part of the Constitution of Bosnia and Herzegovina, provides that every
citizen, without unreasonable restrictions, has the right “to be elected”. Both
the OSCE/ODIHR and the Venice Commission have previously expressed concerns
about limitations on the right to be elected. However,
the issue is virtually moot as most of the limitations expired on 31 December 2007. Regardless, an additional
limitation on the right to be elected has been introduced by the amendments.
Article 6 provides an additional limitation by expanding the current
limitations in Article 1.8 of the Election Law. This amendment adds the
category of “notary” as a person who cannot be a candidate until the person
resigns the position of notary. The legislation regulating the powers of a
notary has not been reviewed. It is recommended that careful consideration
be given to whether this prohibition is a reasonable restriction on the right
to be elected.
2. Specific limitations
on the right to be elected
7. Both
the OSCE/ODIHR and the Venice Commission have expressed concern on numerous
occasions regarding the specific limitations on the right to be elected that
are based on ethnicity. These ethnically based limitations include Articles 8.1
(Presidency of Bosnia and Herzegovina) and 12.3 (Presidency
and Vice Presidency of the Republika Srpska) of the Election Law. These
limitations are based in part on Article V of the Constitution. None of the
proposed amendments address this problem. However, it must be recognized that
this problem can only be addressed by amending both the Constitution and the
Election Law. Constitutional change in Bosnia and Herzegovina has made no
progress.
8. The
OSCE/ODIHR and the Venice Commission have previously expressed concerns over
the exclusion of “others” (any person who is not a Bosniac, Croat, or Serb)
from elective executive office. The
constitutional ethnicity-based limitations to the right to stand for office
violate several international documents, including the ICCPR, European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)
and of the commitments made to the Council of Europe, as well as article 7.3 of
the OSCE 1990 Copenhagen Document. None of the amendments address this issue. It
is recommended that provisions of the constitution and of the Election
Law that discriminate against certain citizens on the basis of their ethnicity
should be eliminated. All citizens of Bosnia and Herzegovina should have the right to
stand for any office or to vote on equal terms.
3. Equal suffrage
9. The election systems for the House of Representatives of
the Parliamentary Assembly of Bosnia and Herzegovina, the Parliament of the
Federation of Bosnia and Herzegovina, and the National
Assembly of the Republika Srpska provide for the election of some members in
multi-member constituencies. Although Articles 9.11, 10.9, and 11.9 of the
Election Law require a review of multi-member constituencies every four years
to ensure that they are established “in a manner that complies with democratic
principles”, the OSCE/ODIHR observed in the 2006 elections that there was
significant variance in voting populations of multi-member constituencies.
Article 25(b) of the ICCPR provides that elections shall be conducted through
the exercise of universal and equal suffrage. Equal suffrage means that the
vote of each voter counts the same as other voters and has equal weight. Equal
suffrage is not respected if the weight of a voter’s vote is diminished due to
significant variance in constituency voting populations.
10. None of the amendments address the above issue. It is recommended
that Articles 9.11, 10.9, and 11.9 of the Election Law be amended to include
the principles of universal and equal suffrage and that these principles be
implemented when the boundaries of multi-member constituencies are reviewed by the
competent authorities.
4. Right to be elected
and vote in local elections
11. The Election Law conditions the right to be elected and
to vote in all elections upon citizenship. The growing trend is for extension
of the right to elect and be elected in local elections to non-citizens who
have had lawful residence on the national territory of the country for a
sufficient period of time. The period of five years is usually considered
sufficient. Further, this right is guaranteed to foreign nationals residing in
States that have ratified the Maastricht Treaty (Treaty on European Union). The
Parliamentary Assembly of the Council of Europe (Recommendation 1500 (2001))
and the Committee of Ministers (Recommendation R (2001) 19) have taken similar
positions in urging member States to adopt the Convention on the Participation
of Foreigners in Public Life at Local Level (ETS No. 144).
12. None of the amendments address the above issue. The
OSCE/ODIHR and the Venice Commission recommend that consideration be
given to amending the legal framework to include suffrage rights in local
elections for those non-citizens who have had-long term lawful residence on the
national territory of the country for a period of five years. It is also
recommended that consideration be given to including specific factors or
criteria in law that should be evaluated in determining the length of
residency.
13. Chapter 3 of the Election Law regulates the Central
Voters Register. All of Chapter 3 was amended in 2006 and several articles are
again amended by the latest amendments. These amendments incorporate by
reference several other laws regulating citizen identification numbers and
cards, residency registration, data exchange, maintenance of records on
citizens, and the activities of other state authorities. To some extent, the
degree to which an accurate list of voters will be established depends on other
legislation and state authorities other than the Election Commission of Bosnia
and Herzegovina. Any significant deficiencies,
if they exist in other legislation, will be highlighted by efforts to implement
the legislation. No obvious deficiencies, however, appear from the text of the
proposed amendments.
6. Participation of National Minorities in local elections
14. The amendments (Article 64) make a significant change in
the election system for national minority candidates in local elections.
Previously, the election system for local elections was a proportional
representation system that required mandates to be allocated to candidates on
lists in accordance with special rules to ensure that members of a national
minority received a number of mandates corresponding to census population
strength. The amendments raise concerns about equal suffrage and non-discrimination
as they create separate electoral systems on the same ballot. One system is a
proportional representation system for the general population of election
contestants and the second system is a plurality or “first-past-the
post-system” (FPTP) for national minority candidates. Under the proposed new
Article 13.14 of the Election Law, a voter has one vote and chooses an
election, either the PR election or FPTP election for national minorities, in
which the voter will participate. The “weight” of vote and “equality” of
suffrage depends on which election the voter opts for when the voter marks the
ballot. This joint opinion does not provide a mathematical analysis of the
potential consequences of the hybrid PR/FPTP two elections/one vote ballot
system. However, in general, it can be seen that there may be some issues
presented concerning equal suffrage and non-discrimination in the exercise of
suffrage rights. It is recommended that there be careful consideration
before this system is adopted and that potential adverse consequences, both
mathematically and legally, are evaluated fully.
15. It should be noted that the Constitution and Legal
Affairs Commission of the House of Representatives of the Parliamentary
Assembly of Bosnia and Herzegovina further amended Article 64 (Amendment IX) by
adding the following text to paragraph (2): “whereby the members of all
national minorities who make over 3% of the total population of that
constituency, according to the last census, shall be guaranteed at least one
seat”. Thus, national minorities constituting at least 3% of the total
population of the constituency are ensured the allocation of least one mandate.
7. Participation of women
8. Verification of
supporting signatures for candidacy
18. The relevant articles in the
Election Law, regulating the number of signatures needed for candidacy, provide
for 5% in some instances and a fixed number in others. Although this issue has
been raised previously, none of the amendments addresses signature support for
candidates. Consideration should be given to revising the number of support
signatures required for candidacy. A commonly accepted maximum is one percent
(1%) of the total number of voters in the relevant constituency. It
is recommended that the 5% should be reduced to 1% and it should be
verified where fixed numbers are used that the fixed number does not exceed 1%
of the registered voters.
19. Article 4.11 of the Election Law
states that a voter “may support only one political party or independent
candidate on the signature support form”. The signature support process is not
an election itself and there does not appear to be a justifiable reason for
limiting the right of voters to support the ballot access efforts of more than
one candidate. A voter should be able to support more than one candidacy with the
voter’s signature. It is recommended that Article 4.11 be amended to
remove this restriction on voters.
20. The Election Law does not state
how the CEC is to verify signatures. Article
4.11 only states that the CEC “shall regulate how the
signatures of support shall be checked and verified”. It is recommended
that a detailed and transparent procedure for verifying support signatures by
the CEC be legally provided, ensuring consistency and uniformity of
the verification process.
9. De-certification of
political party or candidacy
21. Articles 6.7 and 6.10 both provide that the CEC has authority to impose,
when deciding any complaint or appeal, the following penalty: “de-certification
of a political party, coalition, list of independent candidates or independent
candidate(s)”. These articles also grant the CEC authority to decree the
“removal of a candidate from a candidates list when it is determined that the
candidate was responsible for the violations”. None of the amendments addresses
signature support for candidates, although this issue has been raised
previously.
22. The powers in Articles 6.7 and 6.10 are not limited to a
violation that threatens peace and security or the integrity of the election
processes, but apply generally to any violation of the law. This allows room
for potential abuse and disproportionate punishment. It is recommended
that candidate/party registration revocation be limited to cases where legal
requirements for candidacy are not fulfilled. Articles 6.7 and 6.10 should be
amended accordingly.
10. Mandate allocation
23. An amendment introduced by the Constitution
and Legal Affairs Commission of the House of Representatives of the
Parliamentary Assembly of Bosnia and Herzegovina (Amendment VII) changes the rules
for mandate allocation in cantonal assemblies and municipal
assemblies/councils. This amendment revises Article 13.5 of the existing law.
This amendment provides that, in cases not regulated by city statutes or
specific provisions of the Election Law, distribution of mandates must ensure
that at least one mandate is allocated to a “representative of each constituent
people which, according to the last census in BiH, represents more than 3% of
the total population of the city”. This provision is similar to mandate allocation
rules for the House of Representatives of the Parliament of the Federation of
Bosnia and Herzegovina (Article 10.8A), National Assembly of the Republika
Srpska (Article 11.8A), and the City Council of Mostar (Articles 19.5 and
19.6), as it ensures at least one mandate for each constituent people that
constitutes at least 3% of the city population. However, the text of this
amendment is not as detailed as the text of the existing articles specifying
similar allocation rules. It is recommended that Article 13.5 be further
amended to provide greater detail for each step of the allocation process.
Although the intent and goal of the article is apparent, the allocations
procedures could be stated with greater detail and specificity.
24. On a
positive note, the amendments in Articles 33 and 35 address a problem observed
in the 2006 elections when not all mandates could be allocated due to the legal
limit that had been placed on the number of candidates permitted on a list of
candidates.
Article 33 increases the maximum number of names on a list of candidates for a
multi-member constituency from two to five in Article 4.19 of the Election Law.
Article 35 adds a new paragraph in Article 4.24 of the Election Law that
clarifies the maximum number of candidates permitted on a compensatory list of
candidates. This is a positive development that addresses a previous
recommendation.
25.
However, Article 9.9 of the Election Law, which governs vacancies where an
independent candidate held a mandate, remains unaddressed. Under Article 9.9,
if the mandate of an independent candidate terminates, then the mandate remains
vacant until the next regularly scheduled general elections. It is recommended that the law should contain
some mechanism for filling a vacancy in the mandate held by an independent
candidate if the next regularly scheduled general elections are to be conducted
later than 12 months of the date of the vacancy. This
is especially important for the Bosnia and Herzegovina House of Representatives, which has
only 42 members.
11. Election
administration bodies
26. The OSCE/ODIHR final report on the 2006 elections noted
that there were some difficulties observed in the implementation of the voting
and counting processes. Article
8 of the amendments does seem to have a positive effect in relation to this
problem, as it requires continued training for members of elections commissions
as a condition for remaining a member of the commission. This requirement is
added as a new paragraph in Article 2.2 of the Election Law.
27. Another potentially positive amendment is Article 13,
which provides that the number of members for a Municipal Election Commission
can be as many as seven (Article 2.12). The increase from five to seven as the
maximum number could result in more efficient administration of election
processes. This amendment also requires that members be appointed after and
based on public advertisement for positions. The Election Commission of Bosnia
and Herzegovina determines the procedure
for public advertisement under a separate regulation.
28. Article 16 of the amendments changes the timeframe for
appointment of members of polling station committees. Initial appointment of
members has been changed from 30 days before the election to 45 days before the
election. This change would allow additional time for the training of members
of the polling station committees and should be viewed as positive.
12. Postal ballots
29.
Article 41 of the amendments clarifies an ambiguity in the text of Article 5.28
of the Election Law regulating postal ballots. Currently, Article 5.28 requires
that a by mail ballot be postmarked by Election Day in order to be counted. However,
Article 5.28 is not clear whether the postmark is the postmark of the country
from which the ballot has been mailed. Article 41 makes it clear that the
envelope containing the ballot must be postmarked by the post office of the
country from which the ballot was cast. This is a positive amendment.
13. Announcement and publication of
results
30. Article
43 of the amendments introduces a new Article 5.29a, which requires the
Election Commission of Bosnia and Herzegovina to publish preliminary,
unofficial and incomplete results of elections for each level of authority.
Results are to be published at 00:00 hours on the first
Sunday in October; twice during the next 24 hours; every 24 hours during the
next five days; and in the days following every 48 hours until the final,
official and complete results of the elections are published. This amendment
should increase transparency and trust in the election results. However,
greater trust and transparency could result if the new Article 5.29a
specifically required that “publication” of this information include posting at
the website of the Commission. It is recommended
that this requirement is included in Article 5.29a and the Commission publish
all protocols on its website as soon as they are electronically
documented.
31. There are seven amendments to
Chapter 6 of the Election Law, which regulates protection of electoral rights.
The OSCE/ODIHR and the Venice Commission have previously expressed previous
concerns about shortcomings in this area. However, the amendments do not
address previous concerns.
32. There is no express right to a
public hearing under the Election Law. Under Articles 6.3, 6.6, and 6.9, a
public hearing may be held if the adjudicating commission or tribunal decides
that a hearing is necessary. The OSCE/ODIHR has stated that the law should
“enable parties to present their argumentation and evidence in public hearings.
Such a measure would further contribute to the transparency of dispute
resolution.”
33. Transparency in the adjudication
of electoral rights is required under international standards. Proceedings to
determine rights under a state’s law:
“…must in principle be
conducted orally and publicly. The publicity of hearings ensures the
transparency of proceedings and thus provides an important safeguard for the
interest of the individual and of society at large. Courts must make
information regarding the time and venue of the oral hearings available to the
public and provide for adequate facilities for the attendance of interested
members of the public, within reasonable limits, taking into account, inter
alia, the potential interest in the case and the duration of the oral hearing.”
34. The right to present evidence is
a component of the right to file a complaint. However, it is apparent from
Articles 6.3, 6.6, and 6.9 that the right to present evidence may in fact be
limited. Thus, there is no provision for a meaningful right to present evidence
and a complainant may become limited to the “evidence” presented in the
complaint. The complainant is told to provide a “brief description” in the
complaint (Article 6.3), while at the same time having no solid guarantee of
the right to present evidence in support of the complaint at a public hearing.
This puts a complainant in a difficult position. It is also contrary to the
principle of equality before courts and tribunals. “The principle of equality
between parties applies also to civil proceedings, and demands, inter alia,
that each side be given the opportunity to contest all the arguments and
evidence adduced by the other party.”
35. It is of concern that there is
no express right to a public hearing. It is also of concern that there is no clear
guarantee of a meaningful right to present evidence in support of a complaint. Protection
of the right of suffrage requires that procedural and substantive legal
guarantees are available to a citizen, including the right to a public hearing
and the right to present evidence.
36. It is recommended that
the Election Law be amended to ensure that complainants have the right to a
public hearing and the right to present evidence at the hearing. Affording
these rights to complainants would not be an administrative burden. Nor do
costs and time considerations justify ignoring these rights. It should be a
relatively easy matter for an adjudicating tribunal to set aside a slot of
time, on a daily basis, for complainants to have their “say” about their
complaints in a public hearing and to present evidence in support of their
complaints.
37. An amendment to Article 6.7 of
the Election Law grants the Central Election Commission of Bosnia and Herzegovina power to impose
penalties “ex officio” as well as when “adjudicating” complaints. The
OSCE/ODIHR final report on the 2006 elections noted that the “adjudicating
authorities could also initiate investigations ex officio.” The
“ex officio” powers of the Commission should be considered carefully as the
Commission must not only be an impartial tribunal, but must also appear to be
impartial. As noted by the UN Human Rights Committee in General Comment 32:
“The requirement of
impartiality has two aspects. First, judges must not allow their judgement to
be influenced by personal bias or prejudice, nor harbour preconceptions about
the particular case before them, nor act in ways that improperly promote the
interests of one of the parties to the detriment of the other. Second, the
tribunal must also appear to a reasonable observer to be impartial.”
38. The appearance of impartiality
of the Commission may be damaged if the Commission acts both as an executive
function prosecutor as well as in the capacity as judicial function
adjudicator.
39. The OSCE/ODIHR has previously
recommended that “clear deadlines for the adjudication of media-related
complaints should be considered, as there is currently a gap in the legislation
regarding this issue.” None
of the amendments address this recommendation.
III. Conclusion
40.
This joint opinion on the amendments to the Election Law of Bosnia and Herzegovina shows that, while
the amendments primarily address technical issues for purposes of clarification
and improvment they also address some previous substantive recommendations and
should be considered as positive. However, the amendments fail to address some
significant issues previously noted regarding the national and entity election
systems, which are based on ethnicity, the right to be elected, and
transparency in the determination of rights in electoral dispute
proceedings.
