ISSN 1847-2397 godište II broj 1 2009. | volume II number 1 2009
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ISSN 1847-2397 godište II broj 1 2009. | volume II number 1 2009

ISSN 1847-2397 godište II broj 1 2009. | volume II number 1 2009 ISSN 1847-2397 godište II broj 1 2009. | volume II number 1 2009

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Maja Sahadžić: The Electoral System of Bosnia and Herzegovinasuvremene TEME, (2009.) God. 2, Br. 1CONTEMPORARY issues, (2009) Vol. 2, No. 1Annex III of Dayton Peace Accords(Elections in Bosnia and Herzegovina) is directlyrelated to the electoral system and elections inBosnia and Herzegovina. The Republic of Bosniaand Herzegovina, the Federation of Bosnia andHerzegovina and the Republic of Srpska haveagreed to establish elections in accordance withthe relevant documents of the Organization forSecurity and Co-operation in Europe (OSCE).Annex III of Dayton Peace Accords explicitly andspecifically assesses requirements to promotefree, fair, and democratic elections and to laythe foundations for a representative governmentand to ensure the progressive achievement ofdemocratic goals in Bosnia and Herzegovina inArticle 1 (1) of Annex III of Dayton Peace Accords3 . These are also premises for the establishmentof an effective electoral system. But,the electoral system that was created by thisAnnex was merely temporary. It was supposedto last for a short time after the war in Bosniaand Herzegovina with the support of OSCE, yetit was prolonged until 2002.Annex IV of Dayton Peace Accords (Constitutionof Bosnia and Herzegovina) dedicated muchattention to elections and the electoral systemBosnia and Herzegovina. Article I (2) states thatBosnia and Herzegovina shall be a democraticstate, which shall operate under the rule of lawand with free and democratic elections. In ArticleII (1) related to human rights and fundamentalfreedoms it is stated that Bosnia and Herzegovinaand both Entities shall ensure the highest levelof internationally recognized human rights andfundamental freedoms. In Article II (2) related tointernational standards it is stated that the rightsand freedoms set forth in the 1950 EuropeanConvention for the Protection of Human Rightsand Fundamental Freedoms and its Protocolsshall apply directly in Bosnia and Herzegovina.These shall have priority over all other law. Inparticular, a separate point has been made onrights related directly or indirectly to elections inArticle II (3) 4 . Also, in Article II (7) related to internationalagreements it is stated that: Bosnia3 The Parties shall ensure that conditions exist for the organisationof free and fair elections, in particular a politically neutralenvironment; shall protect and enforce the right to votein secret without fear or intimidation; shall ensure freedom ofexpression and of the press; shall allow and encourage freedomof association (including of political parties); and shallensure freedom of movement (Annex III, Article 1(1), DaytonPeace Accords).4 The rights to liberty and security of person, freedom of thought,conscience, and religion, freedom of expression, freedomof peaceful assembly and freedom of association withothers etc (Annex III, Article II (3), Dayton Peace Accords).and Herzegovina shall remain or become partyto the international agreements listed in Annex Ito this Constitution. 5 By including a large numberof international documents on human rights andfundamental freedoms in Constitution of Bosniaand Herzegovina, it can be noted that Bosniaand Herzegovina accepted the internationalstandards related to electoral legislation.Annex VI of Dayton Peace Accords(Agreement on Human Rights) is considerablydedicated to elections and the electoral systemin Bosnia and Herzegovina. Besides humanrights and fundamental freedoms mentioned inAnnex I of Constitution of Bosnia and Herzegovina(Annex IV of Dayton Peace Accords), AnnexVI is also related to the protection of humanrights and fundamental freedoms which affectselections and the electoral system legislation.b) The Electoral Law of Bosnia andHerzegovina – about Elections and ElectoralLegislationOn the other hand, we have the ElectoralLaw of Bosnia and Herzegovina 6 that was adoptedby the Parliamentary Assembly of Bosnia andHerzegovina at the House of Representativessession held on August 21, 2001 and the Houseof Peoples session held on August 23, 2001. Byadopting the Electoral Law of Bosnia and Herzegovina,all criteria and requirements neededhave been met to ensure the holding future electionsaccording to international and domesticlegal regulations. But, the adoption of this lawwas accompanied by different compromises andcompensations of political parties which participatedin the work of the Parliamentary Assemblyof Bosnia and Herzegovina. It should be mentionedthat the adoption of this law was followedwith credentials that the passing of this legislatureis a prerequisite for admission to Council ofEurope. In the end, the Electoral Law of Bosniaand Herzegovina did not offer significant changesto the temporary electoral system based on5 Annex I of Constitution of Bosnia and Herzegovina correspondto fifteen human rights agreements to be applied in Bosniaand Herzegovina where some are directly or indirectlyrelated to elections and electoral systems: 1951 Conventionrelating to the Status of Refugees and the 1966 Protocol thereto,1965 International Convention on the Elimination of AllForms of Racial Discrimination, 1966 International Covenanton Civil and Political Rights and the 1966 and 1989 OptionalProtocols thereto, 1966 Covenant on Economic, Social andCultural Rights, 1994 Framework Convention for the Protectionof National Minorities, etc.6 see: Official Gazette of Bosnia and Herzegovina, 23/01,23/01, 7/02, 9/02, 20/02, 25/02, 4/04, 20/04, 25/05, 52/05,65/05, 77/05, 11/06, 24/06, 32/07, 33/08 and 37/08.centar za politološka istraživanjathe political science research centrewww.cpi.hr64

Maja Sahadžić: The Electoral System of Bosnia and Herzegovinasuvremene TEME, (2009.) God. 2, Br. 1CONTEMPORARY issues, (2009) Vol. 2, No. 1the Dayton Peace Accords. But, in order to seethe differences, we have to give an overview ofthe temporary electoral system in Bosnia andHerzegovina.4. The Temporary Electoral System ofBosnia and HerzegovinaThe temporary electoral system of Bosniaand Herzegovina was based on Annex IIIof Dayton Peace Accords (Elections in Bosniaand Herzegovina). In compliance with this Annex,Article II (1) defines the role of the OSCEin elections. This role requested the parties ofagreement to adopt and put in place an electionsprogramme for Bosnia and Herzegovina,to supervise the preparation and conduction ofelections for legislative and executive governmentbodies in Bosnia and Herzegovina (state,entity, cantonal and municipal level). Article V ofDayton Peace Accords defined the agreementof Parties to create a permanent Election Commissionwith responsibilities to conduct futureelections in Bosnia and Herzegovina. Accordingto Article II (3), the OSCE was to establish aProvisional Election Commission in Bosnia andHerzegovina.In accordance with Article III (1) the ProvisionalElection Commission adopted a largenumber of rules and regulations related to theregistration of political parties and independentcandidates; the eligibility of candidates and voters;the role of domestic and international electionobservers; the ensuring of an open and fairelectoral campaign; as well as the establishment,publication and certification of final electionresults. Those rules and regulations hadpriority over domestic rules and regulations.The Provisional Election Commission had wideresponsibilities. 7 According to Article III (3), theProvisional Election Commission consisted ofthe Head of the OSCE Mission, the High Representativeor his or her designee, representativesof the Parties, and other persons as the Head ofthe OSCE Mission, in consultation with the Parties,may have decided. The Head of the OSCEMission was also Chairman of the Commission.In the event of disputes within the Commission,the decision of the Chairman was final.7 Those responsibilities can be described as supervision ofthe electoral process in order to obtain free and fair elections,determine provisions for voter registration, ensure compliancewith the electoral rules and regulations establishedpursuant Dayton Peace Accords, accredit observers frominternational organisations and foreign and domestic nongovernmentalorganisations, etc. (Annex III, Article III(2),Dayton Peace Accords).According to Annex III of the DaytonPeace Accords, the Provisional Election Commissionadopted the Electoral Rules and Regulationsfor the Elections on Local and HigherLevel in Bosnia and Herzegovina 8 in 1996 andthe Electoral Rules and Regulations for MunicipalElections in Bosnia and Herzegovina 9in 1997. Those rules regulated the process ofregistration and voting of displaced persons andrefugees. It has to be mentioned that the ProvisionalElection Commission also adopted theElectoral Rules and Regulations 10 in 2000 thatwere used to hold elections in Bosnia and Herzegovinauntil the Electoral Law of Bosnia andHerzegovina was introduced.General electoral principles have beensettled in the Attachment to Annex III on Electionsby the Document of the Second Meetingof the Conference on the Human Dimension ofthe Conference on Security and Cooperation inEurope, Copenhagen, 1990 (called the Copenhagenregulations) in Paragraph 7. 11Annex III of Dayton Peace Accords andRules and regulations of the Provisional ElectionCommission have been applied to the electionsfor: the House of Representatives of the ParliamentaryAssembly of Bosnia and Herzegovina,the Presidency of Bosnia and Herzegovina, theHouse of Representatives of the Parliament ofthe Federation of Bosnia and Herzegovina, theNational Assembly of the Republic of Srpska 12 ,8 see: Official Gazette of Bosnia and Herzegovina, 22/96,25/96, 29/96, 21/969 see: Official Gazette of Bosnia and Herzegovina, 10/97,15/9710 see: Official Gazette of Bosnia and Herzegovina, 1/0011 By Copenhagen regulations elections are free held at reasonableintervals, as established by law; regulations permitall seats in at least one chamber of the national legislatureto be freely contested in a popular vote; guarantee universaland equal suffrage to adult citizens; ensure that votes arecast by secret ballot or by equivalent free voting procedure,and that they are counted and reported honestly with the officialresults made public; respect the right of citizens to seekpolitical or public office, individually or as representatives ofpolitical parties or organisations, without discrimination; fullfreedom of political parties or other political organisation;ensure conducting political campaigning in a fair and freeatmosphere; ensure equal access to the media on a non –discriminatory basis for all political groupings and individualswishing to participate in the electoral process; ensure thatcandidates who obtain the necessary number of votes requiredby law are duly installed in office and are permittedto remain in office until their term expires or is otherwisebrought to an end in a manner that is regulated by law inconformity with democratic parliamentary and constitutionalprocedures.12 Additional intervening but independent house named Councilof Peoples of the Republic of Srpska has been establishedby High Representative for Bosnia and Herzegovinacentar za politološka istraživanjathe political science research centrewww.cpi.hr65

Maja Sahadžić: The Electoral System of Bosnia and Herzegovinasuvremene TEME, (<strong><strong>2009</strong>.</strong>) God. 2, Br. 1CONTEMPORARY issues, (<strong>2009</strong>) Vol. 2, No. 1Annex <strong>II</strong>I of Dayton Peace Accords(Elections in Bosnia and Herzegovina) is directlyrelated to the electoral system and elections inBosnia and Herzegovina. The Republic of Bosniaand Herzegovina, the Federation of Bosnia andHerzegovina and the Republic of Srpska haveagreed to establish elections in accordance withthe relevant documents of the Organization forSecurity and Co-operation in Europe (OSCE).Annex <strong>II</strong>I of Dayton Peace Accords explicitly andspecifically assesses requirements to promotefree, fair, and democratic elections and to laythe foundations for a representative governmentand to ensure the progressive achievement ofdemocratic goals in Bosnia and Herzegovina inArticle 1 (1) of Annex <strong>II</strong>I of Dayton Peace Accords3 . These are also premises for the establishmentof an effective electoral system. But,the electoral system that was created by thisAnnex was merely temporary. It was supposedto last for a short time after the war in Bosniaand Herzegovina with the support of OSCE, yetit was prolonged until 2002.Annex IV of Dayton Peace Accords (Constitutionof Bosnia and Herzegovina) dedicated muchattention to elections and the electoral systemBosnia and Herzegovina. Article I (2) states thatBosnia and Herzegovina shall be a democraticstate, which shall operate under the rule of lawand with free and democratic elections. In Article<strong>II</strong> (1) related to human rights and fundamentalfreedoms it is stated that Bosnia and Herzegovinaand both Entities shall ensure the highest levelof internationally recognized human rights andfundamental freedoms. In Article <strong>II</strong> (2) related tointernational standards it is stated that the rightsand freedoms set forth in the 1950 EuropeanConvention for the Protection of Human Rightsand Fundamental Freedoms and its Protocolsshall apply directly in Bosnia and Herzegovina.These shall have priority over all other law. Inparticular, a separate point has been made onrights related directly or indirectly to elections inArticle <strong>II</strong> (3) 4 . Also, in Article <strong>II</strong> (7) related to internationalagreements it is stated that: Bosnia3 The Parties shall ensure that conditions exist for the organisationof free and fair elections, in particular a politically neutralenvironment; shall protect and enforce the right to votein secret without fear or intimidation; shall ensure freedom ofexpression and of the press; shall allow and encourage freedomof association (including of political parties); and shallensure freedom of movement (Annex <strong>II</strong>I, Article 1(1), DaytonPeace Accords).4 The rights to liberty and security of person, freedom of thought,conscience, and religion, freedom of expression, freedomof peaceful assembly and freedom of association withothers etc (Annex <strong>II</strong>I, Article <strong>II</strong> (3), Dayton Peace Accords).and Herzegovina shall remain or become partyto the international agreements listed in Annex Ito this Constitution. 5 By including a large <strong>number</strong>of international documents on human rights andfundamental freedoms in Constitution of Bosniaand Herzegovina, it can be noted that Bosniaand Herzegovina accepted the internationalstandards related to electoral legislation.Annex VI of Dayton Peace Accords(Agreement on Human Rights) is considerablydedicated to elections and the electoral systemin Bosnia and Herzegovina. Besides humanrights and fundamental freedoms mentioned inAnnex I of Constitution of Bosnia and Herzegovina(Annex IV of Dayton Peace Accords), AnnexVI is also related to the protection of humanrights and fundamental freedoms which affectselections and the electoral system legislation.b) The Electoral Law of Bosnia andHerzegovina – about Elections and ElectoralLegislationOn the other hand, we have the ElectoralLaw of Bosnia and Herzegovina 6 that was adoptedby the Parliamentary Assembly of Bosnia andHerzegovina at the House of Representativessession held on August 21, 2001 and the Houseof Peoples session held on August 23, 2001. Byadopting the Electoral Law of Bosnia and Herzegovina,all criteria and requirements neededhave been met to ensure the holding future electionsaccording to international and domesticlegal regulations. But, the adoption of this lawwas accompanied by different compromises andcompensations of political parties which participatedin the work of the Parliamentary Assemblyof Bosnia and Herzegovina. It should be mentionedthat the adoption of this law was followedwith credentials that the passing of this legislatureis a prerequisite for admission to Council ofEurope. In the end, the Electoral Law of Bosniaand Herzegovina did not offer significant changesto the temporary electoral system based on5 Annex I of Constitution of Bosnia and Herzegovina correspondto fifteen human rights agreements to be applied in Bosniaand Herzegovina where some are directly or indirectlyrelated to elections and electoral systems: 1951 Conventionrelating to the Status of Refugees and the 1966 Protocol thereto,1965 International Convention on the Elimination of AllForms of Racial Discrimination, 1966 International Covenanton Civil and Political Rights and the 1966 and 1989 OptionalProtocols thereto, 1966 Covenant on Economic, Social andCultural Rights, 1994 Framework Convention for the Protectionof National Minorities, etc.6 see: Official Gazette of Bosnia and Herzegovina, 23/01,23/01, 7/02, 9/02, 20/02, 25/02, 4/04, 20/04, 25/05, 52/05,65/05, 77/05, 11/06, 24/06, 32/07, 33/08 and 37/08.centar za politološka istraživanjathe political science research centrewww.cpi.hr64

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