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New Series no.11/12 August - November 1999
Constitutional Contradictions

Interview with Kresimir Zubak

You've had the opportunity to analyse the draft Permanent Electoral Law formulated by OSCE and OHR experts. To what extent does the draft satisfy basic democratic criteria?

The draft Permanent Electoral Law represents an advance in relation to what we had, but it doesn't satisfy the criteria we were advocating. I think that it's necessary to reintegrate the B-H state, but that political aim cannot be achieved without adequate electoral legislation. More concretely: I consider that the whole of B-H must be the electoral base when representatives are being chosen for the state institutions of power.

Can B-H have a permanent electoral law in accordance with the B-H Constitution, without it containing any element of discrimination?

It cannot. In the first place because the constitutional mechanisms for choosing members of the Presidency of B-H contain within themselves elements of discrimination. As we all know, a Serb from the territory of the Federation, a Croat or Bosniak from RS, cannot stand for election to the Presidency. And what's particularly interesting is that this provision of the state constitution conflicts with the international convention on civic and political rights. Yet this convention is an intrinsic part of the constitution.

That contradictory nature of the B-H Constitution cannot be eliminated without amending it. Do you think the conditions are ripe for changes to the B-H Constitution?

The Constitution must be finalized. Just look at the way in which decisions are taken in the Central Bank of B-H. The Bosniak and Croat representatives on the Currency Council of the Central Bank share a single vote. That means that their joint vote is equal to the vote of one Serb. But that's not the case in other state institutions, where the ratio of two to one for the Federation in relation to RS obtains. So there are various contradictions in the Constitution and that's why I think it needs to be finalized.

Seeing that you're a lawyer by profession, how do you comment the view of some experts according to which B-H has an illegal Constitution, since the state parliament has not ratified it and it hasn't been published in the official gazette of B-H.

In formal legal terms, the Constitution should have been ratified by the B-H parliament and published in the official gazette, since this procedure was respected in the case of the Federation constitution. But some lawyers will tell you that the B-H Constitution is more of an international agreement than a constitution in the classical sense of the word, so that parliament doesn't even need to ratify it. However, parliament has for example ratified certain other international agreements that have become intrinsic elements of the Constitution, such as a whole number of conventions. The question is really too complicated to be given a simple answer.

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