Opinion no. 460 / 2007 |
Or. Engl. |
|
|
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(
JOINT OPINION
ON AMENDMENTS TO THE ELECTION LAW
OF
by the
and
OSCE/ODIHR
adopted by the Council for Democratic Elections
at its 24th Meeting
(
and by the
at its 75th Plenary Session
(
on the basis of comments by
Mr Ángel
SANCHEZ NAVARRO (Substitute
Mr Hjörtur
TORFASON (
Mr Jessie PILGRIM (Electoral Expert, OSCE/ODIHR)
I. Introduction
1. This joint opinion on the amendments[1] to the Election Law of Bosnia and Herzegovina (Election Law) is prepared by the Organization for Security and Cooperation in Europe’s Office for Democratic Institutions and Human Rights (OSCE/ODIHR) and the Council of Europe’s European Commission for Democracy Through Law (Venice Commission).
2.
The joint opinion considers only the amendments to the Election Law and,
therefore, must be considered with previous assessments of the Election Law by
the
3. In the obviously difficult constitutional, institutional and political context of Bosnia and Herzegovina, the election law has already been subject to quite frequent reforms. For the major part, the current amendments are addressed towards technical issues, for purposes of clarification and improvement, and mainly with positive results. They also do address some previous recommendations of more substantive nature and may be considered as positive to that extent. However, the amendments do not address certain significant issues previously noted regarding the national and entity election systems, which are based on ethnicity, the right to be elected, and transparency in the determination of rights in electoral dispute proceedings.
4.
It must be kept in mind that the legal setting for
5. The present opinion, which was prepared on the basis of comments by Messrs A. Sanchez Navarro and H. Torfason, members of the Venice Commission, Jessie V. Pilgrim, expert for the OSCE/ODIHR, was adopted by the Council for Democratic Elections at its 24th meeting (Venice, 15 March 2008) and by the Venice Commission at its 75th plenary session (Venice, 13-14 June 2008).
II. Discussion of amendments
6. Article
25(b) of the International Covenant on Civil and Political Rights (ICCPR),
which is part of the Constitution of Bosnia and
2. Specific limitations on the right to be elected
7. Both the OSCE/ODIHR and the Venice Commission
have expressed concern on numerous occasions regarding the specific limitations
on the right to be elected that are based on ethnicity. These ethnically based
limitations include Articles 8.1 (Presidency of
8. The OSCE/ODIHR and the Venice Commission have
previously expressed concerns over the exclusion of “others” (any person who is
not a Bosniac, Croat, or Serb) from elective executive office.[7] The constitutional ethnicity-based
limitations to the right to stand for office violate several international
documents, including the ICCPR, European Convention for the Protection of Human
Rights and Fundamental Freedoms (ECHR) and of the commitments made to the
Council of Europe, as well as article 7.3 of the OSCE 1990 Copenhagen Document.
None of the amendments address this issue. It is recommended that
provisions of the constitution and of the Election Law that discriminate against
certain citizens on the basis of their ethnicity should be eliminated. All
citizens of
3. Equal suffrage
9. The
election systems for the House of Representatives of the Parliamentary Assembly
of Bosnia and
10. None of the amendments address the above issue. It is recommended that Articles 9.11, 10.9, and 11.9 of the Election Law be amended to include the principles of universal and equal suffrage and that these principles be implemented when the boundaries of multi-member constituencies are reviewed by the competent authorities.
4. Right to be elected and vote in local elections
11. The Election Law conditions the right to be elected and to vote in all elections upon citizenship. The growing trend is for extension of the right to elect and be elected in local elections to non-citizens who have had lawful residence on the national territory of the country for a sufficient period of time. The period of five years is usually considered sufficient. Further, this right is guaranteed to foreign nationals residing in States that have ratified the Maastricht Treaty (Treaty on European Union). The Parliamentary Assembly of the Council of Europe (Recommendation 1500 (2001)) and the Committee of Ministers (Recommendation R (2001) 19) have taken similar positions in urging member States to adopt the Convention on the Participation of Foreigners in Public Life at Local Level (ETS No. 144).
12. None of the amendments address the above issue. The OSCE/ODIHR and the Venice Commission recommend that consideration be given to amending the legal framework to include suffrage rights in local elections for those non-citizens who have had-long term lawful residence on the national territory of the country for a period of five years. It is also recommended that consideration be given to including specific factors or criteria in law that should be evaluated in determining the length of residency.
13. Chapter
3 of the Election Law regulates the Central Voters Register. All of Chapter 3
was amended in 2006 and several articles are again amended by the latest
amendments. These amendments incorporate by reference several other laws regulating
citizen identification numbers and cards, residency registration, data
exchange, maintenance of records on citizens, and the activities of other state
authorities. To some extent, the degree to which an accurate list of voters
will be established depends on other legislation and state authorities other
than the Election Commission of Bosnia and
14. The amendments (Article 64) make a significant change in the election system for national minority candidates in local elections. Previously, the election system for local elections was a proportional representation system that required mandates to be allocated to candidates on lists in accordance with special rules to ensure that members of a national minority received a number of mandates corresponding to census population strength. The amendments raise concerns about equal suffrage and non-discrimination as they create separate electoral systems on the same ballot. One system is a proportional representation system for the general population of election contestants and the second system is a plurality or “first-past-the post-system” (FPTP) for national minority candidates. Under the proposed new Article 13.14 of the Election Law, a voter has one vote and chooses an election, either the PR election or FPTP election for national minorities, in which the voter will participate. The “weight” of vote and “equality” of suffrage depends on which election the voter opts for when the voter marks the ballot. This joint opinion does not provide a mathematical analysis of the potential consequences of the hybrid PR/FPTP two elections/one vote ballot system. However, in general, it can be seen that there may be some issues presented concerning equal suffrage and non-discrimination in the exercise of suffrage rights. It is recommended that there be careful consideration before this system is adopted and that potential adverse consequences, both mathematically and legally, are evaluated fully.
15. It should be noted that the Constitution and Legal Affairs Commission of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina further amended Article 64 (Amendment IX) by adding the following text to paragraph (2): “whereby the members of all national minorities who make over 3% of the total population of that constituency, according to the last census, shall be guaranteed at least one seat”. Thus, national minorities constituting at least 3% of the total population of the constituency are ensured the allocation of least one mandate.
16. Article 4.19 of the Election Law requires that every list of candidates shall contain a certain number of minority gender candidates.[9] Article 4.19 is intended to increase the number of women candidates at the top of every candidates list and, thereby, increase the number of women elected. Reaching this goal, however, is made difficult by the present system of open list voting (Articles 9.9, 10.7, 11.7, and 13.5), which allows voters to ignore the order of candidates on the list. This fact was specifically observed in the 2006 elections, where more than 30 women lost seats to men who had been placed lower on the lists of candidates.[10] As none of the amendments address this issue, it is recommended that consideration be given to introducing a system ensuring a minimal percentage of each gender in the elected body to achieve the goal of Article 4.19.
17. Article 8 of the amendments attempts to increase the participation of women in the election administration. This amendment adds a new paragraph to Article 2.2 of the Election Law, requiring “efforts” to ensure that at least one-third of the membership of election commissions and polling stations consists of the less represented gender. This is a positive amendment.
8. Verification of supporting signatures for candidacy
18. The relevant articles in the Election Law, regulating the number of signatures needed for candidacy, provide for 5% in some instances and a fixed number in others. Although this issue has been raised previously, none of the amendments addresses signature support for candidates. Consideration should be given to revising the number of support signatures required for candidacy. A commonly accepted maximum is one percent (1%) of the total number of voters in the relevant constituency.[11] It is recommended that the 5% should be reduced to 1% and it should be verified where fixed numbers are used that the fixed number does not exceed 1% of the registered voters.
19. Article 4.11 of the Election Law states that a voter “may support only one political party or independent candidate on the signature support form”. The signature support process is not an election itself and there does not appear to be a justifiable reason for limiting the right of voters to support the ballot access efforts of more than one candidate. A voter should be able to support more than one candidacy with the voter’s signature. It is recommended that Article 4.11 be amended to remove this restriction on voters.
20. The Election Law does not state how the CEC is to verify signatures. Article 4.11 only states that the CEC “shall regulate how the signatures of support shall be checked and verified”. It is recommended that a detailed and transparent procedure for verifying support signatures by the CEC be legally provided, ensuring consistency and uniformity of the verification process.
9. De-certification of political party or candidacy
21. Articles 6.7 and 6.10 both provide that the CEC has authority to impose, when deciding any complaint or appeal, the following penalty: “de-certification of a political party, coalition, list of independent candidates or independent candidate(s)”. These articles also grant the CEC authority to decree the “removal of a candidate from a candidates list when it is determined that the candidate was responsible for the violations”. None of the amendments addresses signature support for candidates, although this issue has been raised previously.
22. The powers in Articles 6.7 and 6.10 are not limited to a violation that threatens peace and security or the integrity of the election processes, but apply generally to any violation of the law. This allows room for potential abuse and disproportionate punishment. It is recommended that candidate/party registration revocation be limited to cases where legal requirements for candidacy are not fulfilled. Articles 6.7 and 6.10 should be amended accordingly.
23. An amendment introduced by the Constitution and Legal Affairs
Commission of the House of Representatives of the Parliamentary Assembly of Bosnia
and
24. On a positive note, the amendments in Articles 33 and 35 address a problem observed in the 2006 elections when not all mandates could be allocated due to the legal limit that had been placed on the number of candidates permitted on a list of candidates.[13] Article 33 increases the maximum number of names on a list of candidates for a multi-member constituency from two to five in Article 4.19 of the Election Law. Article 35 adds a new paragraph in Article 4.24 of the Election Law that clarifies the maximum number of candidates permitted on a compensatory list of candidates. This is a positive development that addresses a previous recommendation.
25. However, Article 9.9 of the Election Law, which governs vacancies
where an independent candidate held a mandate, remains unaddressed. Under
Article 9.9, if the mandate of an independent candidate terminates, then the
mandate remains vacant until the next regularly scheduled general elections. It
is recommended that the law should contain some mechanism for filling a
vacancy in the mandate held by an independent candidate if the next regularly
scheduled general elections are to be conducted later than 12 months of the
date of the vacancy.[14]
This is especially important for the
11. Election administration bodies
26. The OSCE/ODIHR final report on the 2006 elections noted that there were some difficulties observed in the implementation of the voting and counting processes.[15] Article 8 of the amendments does seem to have a positive effect in relation to this problem, as it requires continued training for members of elections commissions as a condition for remaining a member of the commission. This requirement is added as a new paragraph in Article 2.2 of the Election Law.
27. Another
potentially positive amendment is Article 13, which provides that the number of
members for a Municipal Election Commission can be as many as seven (Article
2.12). The increase from five to seven as the maximum number could result in
more efficient administration of election processes. This amendment also
requires that members be appointed after and based on public advertisement for
positions. The Election Commission of Bosnia and
28. Article 16 of the amendments changes the timeframe for appointment of members of polling station committees. Initial appointment of members has been changed from 30 days before the election to 45 days before the election. This change would allow additional time for the training of members of the polling station committees and should be viewed as positive.
29. Article 41 of the amendments clarifies an ambiguity in the text of Article 5.28 of the Election Law regulating postal ballots. Currently, Article 5.28 requires that a by mail ballot be postmarked by Election Day in order to be counted. However, Article 5.28 is not clear whether the postmark is the postmark of the country from which the ballot has been mailed. Article 41 makes it clear that the envelope containing the ballot must be postmarked by the post office of the country from which the ballot was cast. This is a positive amendment.
13. Announcement and publication of results
30. Article 43 of the amendments introduces a
new Article 5.29a, which requires the Election Commission of Bosnia and
31. There are seven amendments to Chapter 6 of the Election Law, which regulates protection of electoral rights. The OSCE/ODIHR and the Venice Commission have previously expressed previous concerns about shortcomings in this area. However, the amendments do not address previous concerns.
32. There is no express right to a public hearing under the Election Law. Under Articles 6.3, 6.6, and 6.9, a public hearing may be held if the adjudicating commission or tribunal decides that a hearing is necessary. The OSCE/ODIHR has stated that the law should “enable parties to present their argumentation and evidence in public hearings. Such a measure would further contribute to the transparency of dispute resolution.”[16]
33. Transparency in the adjudication of electoral rights is required under international standards. Proceedings to determine rights under a state’s law:
“…must in principle be conducted orally and publicly. The publicity of hearings ensures the transparency of proceedings and thus provides an important safeguard for the interest of the individual and of society at large. Courts must make information regarding the time and venue of the oral hearings available to the public and provide for adequate facilities for the attendance of interested members of the public, within reasonable limits, taking into account, inter alia, the potential interest in the case and the duration of the oral hearing.”[17]
34. The right to present evidence is a component of the right to file a complaint. However, it is apparent from Articles 6.3, 6.6, and 6.9 that the right to present evidence may in fact be limited. Thus, there is no provision for a meaningful right to present evidence and a complainant may become limited to the “evidence” presented in the complaint. The complainant is told to provide a “brief description” in the complaint (Article 6.3), while at the same time having no solid guarantee of the right to present evidence in support of the complaint at a public hearing. This puts a complainant in a difficult position. It is also contrary to the principle of equality before courts and tribunals. “The principle of equality between parties applies also to civil proceedings, and demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party.”[18]
35. It is of concern that there is no express right to a public hearing. It is also of concern that there is no clear guarantee of a meaningful right to present evidence in support of a complaint. Protection of the right of suffrage requires that procedural and substantive legal guarantees are available to a citizen, including the right to a public hearing and the right to present evidence.[19]
36. It is recommended that the Election Law be amended to ensure that complainants have the right to a public hearing and the right to present evidence at the hearing. Affording these rights to complainants would not be an administrative burden. Nor do costs and time considerations justify ignoring these rights. It should be a relatively easy matter for an adjudicating tribunal to set aside a slot of time, on a daily basis, for complainants to have their “say” about their complaints in a public hearing and to present evidence in support of their complaints.
37.
An amendment to Article 6.7 of the Election Law grants the Central Election
Commission of Bosnia and
“The requirement of impartiality has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial.”[21]
38. The appearance of impartiality of the Commission may be damaged if the Commission acts both as an executive function prosecutor as well as in the capacity as judicial function adjudicator.
39. The OSCE/ODIHR has previously recommended that “clear deadlines for the adjudication of media-related complaints should be considered, as there is currently a gap in the legislation regarding this issue.”[22] None of the amendments address this recommendation.
III. Conclusion
40.
This joint opinion on the amendments to the Election Law of Bosnia and
[1]
The
amendments reviewed consisted of 79 proposed articles in an unofficial
translation of text (CDL-EL(2008)003). These 79 proposed articles were further
amended by the Constitution and Legal Affairs Commission of the House of
Representatives of the Parliamentary Assembly of Bosnia and
[2] See also Comments on the 2005 draf law on amendments to the Election law of Bosnia and Herzegovina by Mr A. J. Sanchez Navarro CDL-EL(2006)014.
[3]
The
Constitution of the State of Bosnia and
[4] See, e.g., European Commission for Democracy Through Law (Venice Commission) Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative (11 March 2005), CDL-AD(2005)004.
[5] OSCE/ODIHR Election Observation Mission Report, Bosnia and Herzegovina Municipal Elections on 2 October 2004, at page 23; European Commission for Democracy Through Law (Venice Commission) Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative (11 March 2005), CDL-AD(2005)004, at ¶100.
[6] The Case of Ahmed and Others v. The United Kingdom, Nos. 65/1997/849/1056 in the European Court of Human Rights (2 September 1998), provides a good discussion on limitations on the right to be a candidate.
[7] Final Report of the OSCE/ODIHR Election Observation Mission for the 1st October 2006 General Elections (Warsaw, 6 February 2007), page 1; OSCE/ODIHR Final Report on General Elections in Bosnia and Herzegovina on 5 October 2002, page 23.
[8]
For
the House of Representatives of the Parliamentary Assembly of Bosnia and
Herzegovina, constituency no. 1 in the Republika Srpska had almost two times
more voters than constituency no. 3 but the same number of mandates - three.
The Parliament of the Federation of Bosnia and
[9] Article 4.19 provides: “Every candidates list shall include candidates of male and female gender. The minority gender candidates shall be distributed on the candidates list in the following manner. At least one (1) minority gender candidate amongst the first two (2) candidates, two (2) minority gender candidates amongst the first five (5) candidates, and three (3) minority gender candidates amongst the first eight (8) candidates et seq. The number of minority gender candidates shall be at least equal to the total number of candidates on the list, divided by three (3) rounded up to the highest integer.”
[10]
Final Report
of the OSCE/ODIHR Election Observation Mission for the 1st October
2006 General Elections (
[11] One percent (1%) is recognized as a maximum needed for signature support. See Venice Commission Code of Good Practice in Electoral Matters, page 25.
[12] After the law was adopted in March 2008, the rapporteurs were informed that the amendment to the law that regulated a quota for constituent peoples in municipal assemblies was not adopted.
[13]
Final Report of the OSCE/ODIHR Election Observation Mission for the 1st
October 2006 General Elections (
[14]
This
recommendation also applies to the House of Representatives of the Parliament
of the Federation of Bosnia and
[15]
Final Report
of the OSCE/ODIHR Election Observation Mission for the 1 October 2006 General
Elections (
[16]
Final Report
of the OSCE/ODIHR Election Observation Mission for the 1st October
2006 General Elections (
[17] See General Comment 32, Paragraph 28. The United Nations Human Rights Committee has adopted a General Comment (General Comment 32) interpreting the right to equality before courts and tribunals and to a fair trial set forth in Article 14 of the ICCPR.
[18] See General Comment 32, Paragraph 13.
[19] See Articles 8 and 10 of the Universal Declaration of Human Rights; Paragraph 13.9 of the OSCE 1989 Vienna Document, Paragraphs 5.9 through 5.12 of the OSCE 1990 Copenhagen Document, and Paragraphs 18 through 21 of the OSCE 1991 Moscow Document.
[20]
Final Report of the OSCE/ODIHR Election Observation Mission for the 1st
October 2006 General Elections (
[21] See General Comment 32, Paragraph 21.
[22]
Final Report
of the OSCE/ODIHR Election Observation Mission for the 1st October
2006 General Elections (