he ruling party in Croatia, the Croatian Democratic Union, HDZ, is apopleptic with rage. The October general elections in neighboring Bosnia and Herzegovina, BiH, have not gone its way.
Dragan Covic, the head of the party’s Bosnian wing, the HDZ BiH, and the man Zagreb put its political and diplomatic capital behind, lost his bid for re-election to the Croat post on state presidency. And now, the entire HDZ machine – in Croatia, in Bosnia, and in Brussels – is engaged in a diplomatic offensive that is veering into overt irredentism.
That the HDZ establishment has not taken well to their loss is not a surprise. Weeks ahead of the vote, Covic ominously threatened to activate a “Plan B” if he was not returned to the presidency. And, as of a few days ago, it has become clear what the centerpiece of this strategy is: a radical and unconstitutional restructuring of the legislature in the country’s larger entity, the Federation.
In a sense, the HDZ lost the elections – entirely in keeping with the law – but is not about to cede power.
On December 18, more than two months after the polls closed, Bosnia’s Central Election Commission, CIK, announced how the Federation entity’s upper chamber, the House of Peoples, would be filled.
As discussed previously, the delay was rooted in the Constitutional Court’s Ljubic ruling that obliged the authorities to reform the Federation’s elections law.
As no new law was adopted ahead of the elections, and as it remained still unimplemented afterwards, it fell to the CIK to implement a temporary solution.
On paper, all the CIK has done is redistribute the various seats in the Federation’s House of Peoples to better reflect the results of Bosnia’s first post-war census, the one from 2013.
In reality, the Commission has violated the Federation constitution, which states that seats are to be allocated according to the 1991, pre-war census, and has helped artificially strengthen the HDZ’s anti-democratic monopoly over the levers of power.
It has done so against the expressed objections of the Federation’s own Statistics Agency, which has noted repeatedly that the 2013 census results were not appropriately implemented in the first place. In effect, the CIK has assumed the power to unilaterally interpret and amend the Federation’s constitution, while also acting as the entity’s demographer-in-chief to boot.
The essence of the amendments are as follows: to shift several key posts in the House of Peoples previously sourced from large, multiethnic centers like Sarajevo, Zenica, and Tuzla to rural, monoethnic regions, primarily, in Western Herzegovina. In other words, seats are being reassigned from competitive, multiethnic urban centers, to politically and ethnically homogenous regions.
Thus, the Sarajevo Canton, which used to provide two Bosniak, one Croat, five Serb and two seats for the “Others” – i.e. the non-constitutive minorities – will now receive three Bosniak, one Croat, three Serb, and two “Others” seats.
The Herzegovina-Neretva Canton, where the HDZ has ensured that ethnic Serbs do not have full rights according Bosnia’s constitution, will pick up that Serb seat while losing one of its “Others” seats.
The Zenica-Doboj Canton will lose one Croat and one Serb seat apiece but gain two Bosniak seats. The Livno Canton will now have as many ethnic Serb seats as the Sarajevo Canton.
This may all seem like a glorified game of musical chairs, but it represents a fundamental assault on the rule of law in Bosnia.
First, and as noted, this decision violates the Federation constitution. Why would the CIK willingly opt for a “solution” that it knows will mostly likely – although not certainly – be struck down by the Constitutional Court?
Because there are credible reasons to believe that the CIK and the Constitutional Court have been politically compromised by both the HDZ and its long-time coalition partner, the Serb nationalist Alliance of Independent Social Democrats, SNSD.
As such, this decision will allow these parties to dictate or obstruct, as necessary, the shape of any future government coalition. The distribution of seats in the Federation’s (far more competitive) House of Representatives will not matter if any coalition is ultimately beholden to the will of the permanently HDZ and SNSD-controlled House of Peoples.
Secondly, this move ensures that any actual reform of the election law will likewise be beholden to the whims of these two nationalist blocs.
Even if the Constitutional Court ultimately strikes down this seat allocation formula, the HDZ and SNSD will argue that their delegates cannot be removed from their posts post-fact. And even if the Court argues to the contrary, that will be just another Constitutional Court decision ignored by the HDZ and SNSD.
That brings us to the third and, arguably, most important part of this story. Why is the Ljubic decision so urgent that it had to be implanted by hook or crook?
The suggestion that without implementation of this specific decision the House of Peoples could not be constituted at all, which would then in turn plunge the Federation and possibly the state into a constitutional crisis, does not carry water.
After all, the HDZ and SNSD have spent the better part of the decade obstructing three landmark decisions by the European Court of Human Rights: the Sejdic-Finci decision, the Pilav decision, and the Zornic decision.
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