Božo Ljubić for Dnevnik.ba: Bosniak politics misjudged that this is a favorable moment to turn BiH into a Bosniak national state

Mr. Ljubić, what is the essence of BiH Constitutional Court ruling on your appeal and is it possible to legally hold elections without the implementation of that ruling?

The essence of the Constitutional Court ruling is the legitimate political representation of the constituent peoples in all institutions where the Constitution provides for it, and the essence is respect for the Constitution and the rule of law. Given that both domestic and international officials swear on the rule of law. Given that one of the goals of the Peace Implementation Council in BiH is to “revive the rule of law”, I draw the attention of both domestic and international partners (especially those involved in the Election Law negotiations) that respect for BiH's own Constitution and Constitutional Court is the foundation of the rule of law. Therefore, in this answer, I will let the BiH Constitutional Court speak, who in paragraph 47 of the Ruling in the "Ljubić case" states:

„The Constitutional Court recalls that states enjoy a wide margin of appreciation in establishing and regulating the electoral system to be applied. There are different ways of organising and administering elections and this variety is conditioned inter alia by the political development of a country. Therefore, the legislation regulating elections must be viewed in light of he political development of the country concerned. In addition, the Constitutional Court recalls that according to the general principle of democracy, the right to participate in democratic decisionmaking is exercised through legitimate political representation, which has to be based on the democratic choice by those represented and whose interests are represented. In this regard, the connection between those who are represented and their political representatives at all administrative-political levels is actually the one that gives the legitimacy to community representatives. Therefore, only the legitimacy of representation creates a basis for actual participation and decision-making.“

The Constitutional Court ordered the Parliamentary Assembly to implement the Ruling within 6 months. As the Parliament did not implement the Ruling, the Constitutional Court "deleted" certain Election Law provisions from the Election Law. So today we do not have a constitutional Election Law to conduct elections on the basis of the Constitution. There are ridiculous manipulations such as "the Constitutional Court ruling was carried out by the Constitutional Court" or "the Central Election Commission can replace the Parliamentary Assembly". A similar claim was made by the Constitutional Court President, who briefly replied that the Constitutional Court was waiting for the Parliamentary Assembly to implement the Ruling. In a democracy, no one has the right to pass laws instead of Parliament.

Why does Bosniak politics persistently ignore the aforementioned Constitutional Court Ruling?

The short-term goal of Bosniak politics is to retain the right to elect members of the Croat people who are loyal to Bosniak politics (or those BiH citizens who manipulatively declare themselves Croats), so that they can decide independently on financial and investment flows. Degrading the FBiH House of Peoples to the level of the Council of Peoples in the Republika Srpska, denying the constituency of the peoples, which has recently been unanimously advocated by the Bosniak political right and the so-called civic left. Therefore, the goal in the first phase of unitarization of BiH is to turn the Federation into a de facto Bosniak entity. The barrier to this is the Constitutional Court ruling in the "Ljubić case" and it is clear why Bosniak politics is trying to ignore and obstruct it. The implementation of this Ruling does not fit into the long-term strategic goal of Bosniak politics, even from the pre-war period, and that is the unitarization of BiH with the political and institutional domination of the majority.

Are the European Court of Human Rights rulings in any way contrary to the Ljubić ruling?

We are witnesses that the so-called "pro-Bosnian" bloc seeks to use the European Court of Human Rights rulings to delegitimize and derogate the constitutional category, that is the constituency of peoples and the right of those peoples to elect their legitimate political representatives to the positions that the Dayton Peace Agreement (DPA) and the BiH Constitution intended for representing the constituent peoples.

This is attempted by arbitrary and completely unfounded interpretations of ECtHR rulings despite the fact that, for example, the Sejdić-Finci rulings contains passages that clearly show that the ruling does not call the constitutional category of the constituency of peoples into question:

SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA (Applications nos. 27996/06 and 34836/06)

48. In addition, while the Court agrees with the Government that there is no requirement under the Convention to abandon totally the power-sharing mechanisms peculiar to Bosnia and Herzegovina and that the time may still not be ripe for a political system which would be a simple reflection of majority rule, the Opinions of the Venice Commission (see paragraph 22 above) clearly demonstrate that there exist mechanisms of power-sharing which do not automatically lead to the total exclusion of representatives of the other communities. In this connection, it is recalled that the possibility of alternative means achieving the same end is an important factor in this sphere (see Glor v. Switzerland, no. 13444/04, § 94, 30 April 2009).

This paragraph of the Sejdić-Finci ruling clearly suggests that the ECtHR considers that the implementation of this ruling does not require changing the existing mechanisms of power-sharing specific to BiH, ie that the ruling can be implemented without interfering with the Constitutional fact that constituent peoples have the right to legitimate political representation which the DPA and the BiH Constitution intended for this type of representation.

The principles and models of limited changes to the Constitution and the Election Law established by the Croatian National Assembly (CNS), which are advocated by our negotiators, represent the implementation of both fundamental rulings, the ECtHR and the BiH Constitutional Court, which are, I claim, complementary and not exclusive. In addition, none of these rulings interfere with the basic BiH constitutional structure, and in particular none of them calls for a competence reduction of the houses of peoples.

What does the fact that the notions of legitimate representation and constitutivity are literally ridiculed in the Sarajevo public, even in academic circles, tell us?

I think that the Bosniak political, intellectual, spiritual and media scene has misjudged that now is a favorable moment to achieve strategic goals, present since the independence of Bosnia and Herzegovina, and that is the establishment of Bosnia and Herzegovina as a unitary, so-called civic state, de facto Bosniak national state. This erroneous assessment was supported by some decisions and actions of international community representatives in the last twenty years, or even the Bosniak misreading of these actions. Hence the disappointment of these circles with the views of some international representatives involved in talks on changes to the Election Law (attacks on Palmer, the EU, etc.). The constituency of peoples is explicitly contained in the preamble of the BiH Constitution and operationalized through the Election Law (before its imposed amendments), the structure of the Presidency and the BiH Council of Ministers…, is an insurmountable barrier to this strategic goal of Bosniak policy.

Why is the constituency of peoples literally the cornerstone and overriding principle of the BiH Constitution?

The multinational character, constitutivity and equality of the three peoples (Bosniaks, Croats and Serbs) is the very essence and key to the functionality and sustainability of Bosnia and Herzegovina. ZAVNOBiH delegates in Mrkonjić Grad in 1943 were well aware of the multinational character of Bosnia and Herzegovina, deep national differences and goals that were the cause of tragic conflicts in the past, and the ZAVNOBiH Resolution clearly stated that BiH will be „neither Serb, neither Croat nor muslim, but rather Serb and muslim and Croat“.

The constitution-makers in Dayton were aware of this, thus it is inscribed in the preamble of the BiH Constitution: “Recalling the Basic Principles agreed in Geneva on 8 September 1995 and in New York on 26 September 1995, Bosniacs, Croats and Serbs, as constituent peoples (along with Others), and the citizens of Bosnia and Herzegovina hereby determine the Constitution of Bosnia and Herzegovina.“ The BiH Constitutional Court was also aware of this, emphasizing in two of its rulings that the constituency of peoples is „a fundamental principle of the BiH Constitution to which all constitutions and laws in BiH should abide.“ Paragraph 49 of the Constitutional Court ruling in the Ljubić case further explains what constituent peoples are in the context of the BiH Constitution:

„The Constitutional Court recalls once again the general principle of democracy that state power originates from the people and belongs to the people. It follows from the Constitution of Bosnia and Herzegovina that the Constitution of Bosnia and Herzegovina designated, as the people, the constituent peoples who together with Others and the citizens of Bosnia and Herzegovina form a community of citizens, which exercises power equally through its representatives,...“

Therefore, the constituent peoples are not ethnic but political nations, therefore BiH is a multinational state and each constituent people represents a separate demos that democratically decides through its legitimate representatives. Everyone is aware of this, except for political extremists who want domination or political opportunists and parasites who base their existence on circumventing constituency of peoples.

How do you see the future of BiH?

I believe that the future of Bosnia and Herzegovina, as a self-sustaining and functional state, can be exclusively based on the principles of the Dayton Peace Agreement and the BiH Constitution, which are the principles and models of federalism and consociational/consensual democracy which implies legitimate representation of constituent peoples and their mutual equality (balance of power), and the highest degree of protection of human and civil rights of all BiH citizens. It is a middle ground between two radical political agendas - separatism and unitarism. These are the views of legitimately elected Croatian political representatives gathered within the Croatian National Assembly of BiH, and not of one party or one political leader as "pro-Bosnian" social and political actors try to portray. If a "middle ground" is not found, the conflict between unitarian and separatist narratives and policies could lead to "cyprization" and, in extremely unfavorable geopolitical circumstances, to the "syrization" of Bosnia and Herzegovina (as I recently warned senior US and EU officials, and domestic actors).

The strategic foreign policy determinant should be Euro-Atlantic integration, ie BiH's membership in the EU and NATO.

I think that the current talks, regarding the limited Constitutional reform and the Election Law changes, are the last chance to preserve this conception of Bosnia and Herzegovina as a state of three constituent peoples and two entities. Namely, this conception is sustainable only under the condition of legitimate political representation of the constituent peoples in the electoral process and parity in the institutions, as defined by the Constitution. Otherwise, the future is uncertain.

Dnevnik.ba