Christian Schmidt’s Stabilitocracy

The High Representative in Bosnia and Herzegovina Christian Schmidt has imposed amendments to the Constitution of the Federation of Bosnia and Herzegovina and the Election Law of Bosnia and Herzegovina. Through these amendments, he increased the number of delegates in the House of People of the Federation of Bosnia and Herzegovina and amended the process of nominating a president and vice presidents of the Federation of Bosnia and Herzegovina. Unfortunately, he did not make sufficient improvements in unblocking the Federation of Bosnia and Herzegovina, and he entirely neglected to implement rulings of the European Court of Human Rights. So, Schmidt by this decision questioned the role of the international community in Bosnia and Herzegovina – should Bosnia and Herzegovina be a democratic state or a state of ‘ethnic stabilitocracy’? Schmidt, by this decision, showed us that ‘ethnic stabilitocracy’ is the current aim of the international community in Bosnia and Herzegovina.

What has Schmidt imposed?

Just after the voting process ended on election day on 2 October, 2022, Schmidt imposed amendments on the Constitution of the Federation of Bosnia and Herzegovina (FB&H) and on the Election Law of Bosnia and Herzegovina (Election Law). Firstly, he amended the number of delegates in the House of Peoples of the FB&H. Now, the House of People has 80 delegates. Every caucus of constituent peoples has 23 delegates, and the caucus that represents ‘Others’ has eleven delegates (Amendment CXI). Secondly, he amended the process of nominating a president and vice presidents of the FB&H. Now, “any group of eleven delegates in each caucus of constituent peoples of the House of Peoples may nominate a candidate from the corresponding constituent peoples, provided that each delegate may only support one candidate” (Amendment CXX). If they fail to nominate a candidate from the corresponding constituent peoples, then any seven delegates may nominate a candidate. In case they also fail to nominate a candidate, then any four delegates may nominate a candidate. Candidates who are nominated must be approved by the majority of the House of Representatives and after by the majority of the House of Peoples. If the House of Peoples does not organize voting for candidates after 30 days of approved candidates in the House of Representatives, candidates will be considered nominated. With this amendment, Schmidt tried to nullify the deadlock mechanism in the process of nominating a president and vice presidents of the FB&H. Also, he nullified the provision in the FB&H Constitution, which prescribed that vital national interests are “other issues treated as of vital national interest if so claimed by 2/3rd of one of the caucuses of the constituent peoples in the House of Peoples” (Amendment CXVI). Thus, the vital national interest is no longer “whatever is claimed by 2/3rd of one of the caucuses”. Additionally, Schmidt imposed that “published results of the latest census in B&H shall be used for the calculations requiring demographic data made for the election of delegates to the House of Peoples” (Amendment CXXVIII). Furthermore, he imposed amendments on the process of nominating judges of the Constitutional court of the FB&H (CCFB&H). Through these amendments, he tried to also unblock the process of nominating judges of the CCFB&H. These are the main changes in the FB&H Constitution and the Election Law. Below, we will try to explain what these amendments mean for Bosnia and Herzegovina (B&H).

Balancing between the implementation of the judgment in the case of Ljubić and unblocking the FB&H

Schmidt’s intention was to implement the judgment of the Constitutional court B&H (CCB&H) in the case of Ljubić and to unblock the process of nominating a president and vice presidents of FB&H and the process of nominating judges of the CCFB&H. Firstly, he partially implemented the judgment of Ljubić. Thus, now from each canton a delegate will be designated for every caucus of constituent people in the House of Peoples – “Each constituent people and the group of Others shall be allocated one seat in every canton which has at least one such delegate in its legislative body provided that, if a canton does not have one such delegate in its legislative body, Article 10.16 of this Law shall apply” (Article 3). So, the Central Election Commission B&H shall allocate delegates from other cantons if the assembly of a particular canton does not have such a delegate. In the case of Ljubić, the CCB&H nullified quotas of how many delegates will be delegated from each canton. Through this decision, Schmidt did not impose new quotas and the jurisdiction of setting quotas still remains in the hands of the Central Election Commission B&H. Albeit his intention was to unblock the FB&H, blocking mechanisms are still there. For example, a president and vice president may block the process of nominating a prime minister. Also, candidates for president and vice presidents must be approved by the House of Representatives and the House of Peoples, and ethnic parties may block this process. Therefore, he did not nullify the mechanisms of deadlock entirely. So, Schmidt did not implement the Ljubić judgment in its entirety, and also he did not make enough institutional guarantees for unblocking the FB&H.

The “Bad side” of Schmidt’s decision?

Schmidt in his decision has entirely neglected the rulings of the European Court of Human Rights (ECtHR) (primarily Sejdić and Finci, and Zornić). Although he has jurisdiction to implement these judgments in the FB&H Constitution, he did not do it. Also, he totally neglected the forgotten judgment of the CCB&H in the case of Komšić. In this judgment, the CCB&H proclaimed unconstitutional provisions of the FB&H Constitution, which prescribed that a president and vice presidents of the FB&H may be only from constituent peoples. Thus, the CCB&H used the same reasoning as the ECtHR in mentioned judgments. Therefore, all citizens of the FB&H who are not members of constituent peoples must have a legal chance to become a president and vice president of the FB&H. Unfortunately, Schmidt has not amended the FB&H Constitution in this regard. The second problem is that Schmidt’s decision favours ethnic parties. For instance, increasing the number of delegates in the House of Peoples favours ethnic parties, because now ethnic parties will have more delegates in the House of Peoples and they will control the process of nominating a president and vice presidents of the FB&H. Also, the timing of enacting the decision is highly controversial. If parties competed in accordance with the same kind of rules, and if someone imposed new election rules after election day, it seems like manipulating the will of people in B&H. This is exactly what Schmidt has done by this decision. Although it is mainly about amendments that do not refer directly to the will of the people, amendments on indirect delegating affect the very method of creating electoral lists. Furthermore, it is possible that citizens would have voted differently if they had known about amendments to the Election Law. The additional problem may represent the allocation of enough Serbs in their caucus, because many parties did not candidate enough Serbs on their lists. By imposing that “the latest census in B&H shall be used for the calculations requiring demographic data made for the election of delegates to the House of Peoples” (Amendment CXXVIII), while all the other institutions still use the 1991 census, Schmidt introduced legal uncertainty in the constitutional system of FB&H. This shows that his intention was to satisfy particular ethnic interests, not to make a sustainable constitutional system.  Also, Annex 7 of the Dayton Peace Agreement has never been enforced, so Schmidt acted contrary to the Dayton Peace Agreement by imposing this.

Schmidt’s decision before the CCB&H

Immediately after Schmidt announced his decision, Željko Komšić, a member of the Presidency of B&H, filed a request for a constitutional review of Schmidt’s decision. If the CCB&H follows its own practice (judgment Komšić), the CCB&H will proclaim Schmidt’s decision unconstitutional. Also, Komšić requested a temporary measure from the CCB&H to stop the enforcement of this decision – until the CCB&H decides on the constitutionality of this decision. The CCB&H has jurisdiction over the decision of the High Representative (see: Judgment U-9/00). What if the CCB&H proclaims this decision constitutional? Probably, in that case, that will be the first time in history the decision of the High Representative will be before the ECtHR. By this decision, Schmidt called into question the sincerity of the international community’s intention to make B&H a democratic state with rule of law. The very possibility of Schmidt’s decision being declared unconstitutional shows the wrongness of his decision. Unfortunately, in this decision, he was not guided by international and European legal standards. Schmidt took a step back for B&H on the road to election reform. Instead of focusing on the satisfaction of human rights in accordance with the judgments of the ECtHR, he focused on the protection of ethnic interests. He decided to preserve the ‘ethnic stabilitocracy’ rather than build a democratic state. The issue of election reform for B&H is not only a matter of elections, but also a matter of the rule of law. Therefore, this issue cannot be resolved without an overall reform of the B&H constitutional system. Since the Election Law is an essential part of the B&H Constitution, it cannot be reformed separately without reforming the B&H Constitution. Firstly, B&H should implement all ECtHR rulings and all judgments of the CCB&H. In this case, Schmidt chose to implement only the judgment of Ljubić. This manner of reform cannot sufficiently improve the election process in B&H.