High Representative in BiH Christian Schmidt – photo OHR Office
One of the issues that have remained pending since last year in Bosnia and Herzegovina concerns the reform of the electoral law. Given the obstructionism of some parties and the inability to reach an agreement, it is very likely that the High Representative in BiH Christian Schmidt will soon impose the reform
Last December 19, the High Representative in BiH Christian Schmidt issued a warning, asking Bosnian-Herzegovinian politicians to adopt some technical changes to the electoral law “within two or three weeks”, otherwise he would have done it. Two days later, the Party of Democratic Action (SDA), currently in opposition, presented a proposal to parliament to amend the electoral law. The proposal envisages, among other things, the use of new technologies in voting operations, including ballot scanners, and the expansion of the competences of the Election Commission of BiH (CIK), entrusting it with the task of appointing and dismissing presidents and vice-presidents of the polling stations, who would be chosen from among candidates not affiliated with any political party. Currently, the presidents and vice-presidents of the polling stations are proposed by the political parties.
The amendments to the electoral law presented by the SDA were adopted by the House of Representatives of the Parliamentary Assembly of BiH on 29 December. Now the new law text, to come into force, must also be approved in the same version by the People’s Chamber of the Parliamentary Assembly. However, the two main parties of the governing coalition at state level – the Union of Independent Social Democrats (SNSD) and the Croatian Democratic Union of BiH (HDZ BiH) – have already announced that even in the House of Peoples, where they have a majority, they will vote against the new electoral law.
In recent days, the High Representative has conducted a series of consultations with representatives of the governing parties at state level and of the BiH Federation, specifically with Dragan Čović, leader of HDZ BiH and with representatives of the parties of the so-called “troika” [composta dal Partito socialdemocratico (SDP), dal movimento Popolo e giustizia (NP) e da Naša stranka (NS)]. Schmidt also met with Irena Hadžiabdić, President of the CIK, and Željko Komšić, President of the Tripartite Presidency of BiH. During the meetings, the adoption of the necessary reforms to strengthen the integrity of the electoral system and the importance of the CIK in preventing electoral fraud were discussed in particular.
Dodik’s filibuster
The reactions of the political forces of the Republika Srpska to the announcement of Schmidt’s new legislative intervention were not long in coming. For the RS leadership, led by Milorad Dodik, it is unacceptable that the High Representative imposes new electoral legislation or any other law. RS politicians do not recognize Schmidt’s authority, considering his appointment illegitimate since it was not unanimously confirmed by the UN Security Council.
The government team, led by Dodik, has announced its intention to adopt a new RS electoral law. This was discussed during a meeting held on January 8 in Banja Luka. According to what was reported in the media, the meeting also discussed how to restore electoral competences to the RS. Representatives of the opposition (SDS, PDP and the “For Justice and Order” list) were also invited, but, as previously announced, they boycotted the talks, believing that Dodik’s announcement that he wanted introducing a new RS electoral law is mere populism and deception.
During the meeting, a “provisional” version of the text of the new law was agreed which – as explained by Nenad Stevandić, president of the People’s Assembly of the RS – will be subjected to examination by the representatives of the parties represented in parliament. Speaking to journalists at the end of the meeting, Stevandić said that there is no doubt that the adoption of a new electoral law of Republika Srpska is based on the Constitution. For Stevandić, the new RS law will be the best electoral legislation in the country because it provides for a digital monitoring system of voting operations. The speaker of the parliament criticized the opposition, saying that those who deserted the meeting did not respect the institutions of the RS, and therefore supported Schmidt and his practice of imposing laws.
This was echoed by Radovan Višković, prime minister of Republika Srpska, declaring that the organization of municipal elections and those at entity level (for the renewal of the People’s Assembly and to elect the president of Republika Srpska) “falls within the competence ” of the RS.
A few days later, Nebojša Vukanović, opposition MP, published the proposal for the new electoral law of the RS, highlighting how the text of the proposal essentially coincides with that of the electoral law of BiH, with the difference that the competences of the CIK have been transferred to the electoral commission of the RS. Another innovation – as Vukanović underlined – concerns the financing mechanism: the proposal provides that the resources necessary to organize the elections are allocated in the budget of the RS and those for the salaries of the members of the electoral commissions in the municipal budgets.
Announcing the new electoral law of Republika Srpska, Dodik said that the legislative process will be started as a matter of urgency, specifying that the proposal does not concern the elections for the tripartite Presidency nor those for the House of Representatives of BiH.
The question of skills
Experts underline that the organization of elections has never been the prerogative of the entities, therefore there can be no question of a restoration of competences. Some analysts have drawn public attention to the provisions of the electoral law of BiH which provide that the electoral commissions of the two entities are created in accordance with the provisions of the laws of the entities, while always respecting the regulations at the state level. The latter in fact provides that the Election Commission of BiH establishes the competences of the electoral commissions of the two entities.
According to the provisions of Annex 3 of the Dayton Agreement and the electoral law of BiH, regarding the organization and conduct of elections, the final say lies with the CIK. According to current legislation, the CIK has the task of coordinating, monitoring and regulating the activities of all electoral commissions in the country, validating the electoral lists and verifying and updating the register of eligible voters.
The US embassy in Sarajevo said that “any attempt by Republika Srpska or another lower-level administrative entity [a quello statale] to illegitimately appropriate the powers of the state represents a violation of the Dayton Agreement and the laws of BiH”. The United States said it was ready to react to any action by Bosnian-Herzegovinian politicians contrary to the Dayton Agreement and the Constitution of BiH, including by supporting the decisions of the High Representative aimed at countering such actions.
High Representative Christian Schmidt said that the tendency to question the constitutional and legal order and democracy has consequences. Schmidt urged the SNSD-led coalition not to act to the detriment of Republika Srpska and its citizens, stressing that passing a reform of BiH’s electoral law that could strengthen the integrity of the electoral system would benefit everyone.
The opposition in Republika Srpska has repeatedly criticized Dodik’s intention to create an RS electoral commission, stating that “the SNSD does not want the elections to be fair and transparent”. The SDA also accused Dodik of undermining the constitutional and legal order of Bosnia and Herzegovina. The BiH Election Commission declined to comment on the matter.
Among the reactions of the exponents of the three that of Nerin Dizdar, member of the working group for changes to the electoral law of BiH, stands out. Dizdar stated that Dodik’s claims have no legal basis, recalling that there are already institutions responsible for implementing electoral legislation.
According to some analysts, judging by Dodik’s actions and the harsh rhetoric he has resorted to in recent months, especially since the criminal action against him, it seems that the SNSD leader has taken the path of secession. Representatives of the international community in BiH also express serious concern about Dodik’s statements and the initiatives carried out by RS institutions. In one of his recent statements, Michael Murphy, US ambassador to Sarajevo, made it clear that Washington will take concrete action in the face of a possible attempt to destroy Bosnia and Herzegovina and the Dayton Agreement.
Milorad Dodik, in his rhetoric, as well as in his actions, enjoys the full support of all senior officials and political decision-makers in his entourage, from Željka Cvijanović, member of the Tripartite Presidency of BiH, to Radovan Višković, Prime Minister of the RS, and Nenad Stevandić, President of the Parliamentary Assembly of the RS.
If the High Representative decides to introduce the announced changes to BiH’s electoral law, it would not be his first intervention aimed at impacting the electoral system. On October 2, 2022, the day on which the general elections were held in BiH, Christian Schmidt introduced some amendments to the electoral legislation of BiH and the Constitution of the BiH Federation regarding the formation of power bodies elected by indirect suffrage. Then in April 2023 Schmidt decided to make further changes to the FBiH Constitution, supposedly to facilitate the formation of the federal government, as well as to amend the Criminal Code of BiH to prevent electoral fraud.
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