A new challenge for Bosian's ethnicity-based political system

We’ve been here before: four people have already successfully sued the country for denying them political rights because of their ethnic identity. This election cycle might add another lawsuit to the stack -- but this time, there is a twist.

Tijana Cvjeticanin
Tijana Cvjeticanin Istinomjer, Bosnia and Herzegovina
Source: Istinomjer
A new challenge for Bosian's ethnicity-based political system - NewsMavens
Svetozar Pudarić, Facebook

Why this story matters:

In Bosnia & Herzegovina, three ethnic groups are considered “constituent peoples”: Bosniaks, Croats and Serbs. The state’s Presidency is therefore a collective body with one member from each group, the Bosniak and Croat members are elected from the Federation of BiH, and the Serb member is elected from Republika Srpska (FBiH and RS are two entities established by the Dayton Peace Agreement).

Anyone who doesn’t fit into these strict requirements is not allowed to run for the Presidency of BiH -- and some have sued the state because of that. Although all four plaintiffs won their cases at the European Court for Human Rights, the Constitution of BiH still hasn’t changed.

But now a fifth lawsuit is taking a somewhat different approach, seeking to get justice within the country’s legal system.

Svetozar Pudarić, member of the Social Democratic Party and a Serb who lives in the Federation of BiH, has submitted his candidature for the Presidency in the 2018 elections. Like those before him, he was refused by the Central Electoral Committee, because a Serb member of Presidency cannot be elected from FBiH.

It’s still unclear if Pudarić intends to take his case to the ECHR, where he would most certainly win. The strategic litigation he has in mind is actually directed at the Constitutional court of BiH, which has declared that it lacked jurisdiction to consider any of the other cases. Pudarić thinks he might get a different outcome:

“I did this because of the legal precedent set by the Court in 2016, when it accepted the appelation from Božo Ljubić and then ruled to outlaw certain provisions of the Election Law which are in breach ofthe Constitution. None of the previous cases could be tried there, because it declared that it has no jurisdiction for such matters.”  

The ruling in question was seen by many as implicit support for the discriminatory principles of dividing power between selected ethnicities. It will certainly be interesting to see whether Pudarić will manage to use that same decision as a weapon against that very system.

Legal battles already won at the European Court of Human Rights:

  • Dervo Sejdić and Jakob Finci were both denied the right to run for state Presidency on the ground that they don’t belong to any of the three constituent peoples (Sejdić is Roma and Finci is Jewish). They sued the country for discrimination and the court ruled in their favor in 2009.
  • Azra Zornić was denied the same right because she refused to subscibe to any ethnicity and simply declared herself “a citizen of Bosnia and Herzegovina”. The court ruled in her favor in 2014. Often overlooked, this verdict is the one that most substantially challenges the discrimination embedded in the country’s Constitution and, consequently, the Election Law.
  • Ilijaz Pilav was not allowed to run because he is a Bosniak who lives in Republika Srpska, which only votes for the Serb member of the Presidency. The court ruled in his favor in 2016.
  • Since the Constitutional court of BiH refused to examine their cases and there is no higher judicial body in the state, the ECHR was the “last resort” for all three lawsuits.
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